IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 MACA.No. 308 of 2009() -------------------------------- OPMV.777/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): PETITIONER IN OP(MV) ----------------------- P.R.CHANDRAN, S/O.PONNUVANAM PILLAI, CHEMMAZHATH HOUSE, DIVANS ROAD, ERNAKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. BY ADVS. MR.MATHEWS K.PHILIP SMT.NIMMY K.ALILAKUZHYIL RESPONDENT(S): RESPONDENTS 1 & 2 IN OP(MV) --------------------------- 1. ANIL, S/O.JOSEPH, KALARIKKAL HOUSE, MARKET ROAD, SOUTH OF MANGAYIL SCHOOL, MARADU, ERNAKULAM. 2. UNITED INDIA INSURANCE COMPANY LIMITED, M.T.P.C. OFFICE, M.G.ROAD, ERNAKULAM. R2 BY ADV. SMT.P.K.SANTHAMMA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... M.A.C.A.No.308 OF 2009 ............................................. Dated this the 16th day of December, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Ernakulam in OP(MV)No.777/2002. The claimant, a 59 year old man, sustained injuries in a road accident and he had a lacerated wound over the forehead and when he was admitted in the hospital, it was also diagonised that he was having Myocardial infraction. 2. I am not going into the details of those materials and I do not propose to interfere with the quantum awarded obviously for the reason mentioned above. Now the main question is regarding the liability of the insurance company. The Tribunal in para-8 without even seeing the policy, accepted the contention of the insurance company and extended the principles in United India Insurance Co. Ltd. v. Tilak Singh (2006(2) KLT 884 (SC))and exonerated the insurance company from the liability. When the company pleads that the policy does not cover the risk, it is for the company to prove it and not otherwise. : 2 : M.A.C.A.No.308 OF 2009 Unfortunately, the Tribunal has approached the matter in a wrong angle. The learned counsel for the appellant had produced a copy of the policy which will show that it is a B policy or a package policy. The vehicle stands registered in the name of one Anil who is the owner of the vehicle. The engine number and chasis number are given as 01G21M 19292 and 01G21C 21851. The policy is from 1.8.2001 to 13.7.2002. It is a policy wherein premium is collected for own damages, third party liability and unlimited coverage for the third party’s property which shows that it is a package policy. In order to find out whether the engine relates to the vehicle involved, the learned counsel for the appellant also had shown me a certificate of registration and I have referred to page-3 of the said book which shows entries regarding chasis number as 01G21C 21851 column No.7 engine is 01G21M 19202. So, it is clear that the vehicle involved in the accident is covered by a package policy produced along with the Memorandum of Appeal. When it is a package policy and as the claimant involved in this case is a pillion rider in a motor bike, by virtue of the circular issued by the Insurance Regulatory and Development Authority, the risk of the pillion rider is covered under the standard motor : 3 : M.A.C.A.No.308 OF 2009 package policy. Further conditions of policy, that is Section II(1)(i) has been the subject matter of consideration by two Division Benches of this Court reported in New India Assurance Co. Ltd.v. Hydrose (2008 (3) KLT 778)and in Mathew v. Shaji Mathew (2009 (3) KLT 813)wherein the courts have ordered that payment of additional premium is not necessary as the conditions of the policy cover the risk. Therefore, the finding of the Tribunal exonerating the insurance company from the liability is set aside and it is liable to pay. 3. In the result, the MACA is partly allowed. The quantum awarded by the Tribunal is sustained and the finding of exoneration of the insurance company from the liability is set aside and it is made liable to pay. The insurance company is directed to deposit the amount as ordered by this Court within a period of 60 days from the date of receipt of a copy of this judgment. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A.No.308 OF 2009 : 5 : M.A.C.A.No.308 OF 2009