IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 MACA.No. 1832 of 2005() ---------------------------------- OPMV.289/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/3RD RESPONDENT ------------------------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., KALPAKA SHOPPING COMPLEX, MAIN ROAD, KALPATTA. BY ADV. SRI.RAJAN P.KALIYATH SMT.P.K.PRATHIBHA RESPONDENT(S): CLAIMANTS AND R1 AND R2 -------------------------------------------------------------------- 1. P.KOYA, S/O.IMBICHIKOYA, PATTARATH HOUSE, P.O.PODUVACHERRY, KADACHIRA, KANNUR DISTRICT. 2. P.JAMEELA, W/O.KOYA, DO.DO. 3.C.MOHAMMED RAFEEQUE, S/O.HAMSA, RAFEEQUE MANZIL, KOTTOOR, P.O.KADACHIRA. 4. C.MAJEED, RAFEEQUE MANZIL, KOTTOOR, P.O.KADACHIRA. ADV. SRI.C.P.PEETHAMBARAN FOR R1 & R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K.BASHEER & P.Q. BARKATH ALI, JJ. ---------------------------------------------------------- M.A.C.A No. 1832 OF 2005 -------------------------------------- DATED THIS THE 30TH DAY OF AUGUST,2010 JUDGMENT Barkath Ali, J. The appellant is the 3rd respondent, Insurance Company in M.A.C.A No. 289 of 2000 on the file of the Motor Accidents Claims Tribunal, Thalassery. Respondents 1 and 2 in the appeal were the claimants in O.P. They are the parents of the deceased boy Moideenkunhi, aged 12, who died in a motor accident that occurred on April 8, 1999 at about 10.45 a.m. at Paduvilayi. The accident happened when they went to Paduvilayi by hiring a Jeep bearing registration No.KL10/C 7924 and when they reached at Paduvilayi, the deceased as well as the claimants got out of the Jeep and were walking along the side of the road and at that time the offending Jeep came on reverse and capsized on the deceased Moideenkunhi. He sustained serious injuries and he succumbed to the injuries while undergoing treatment at the hospital. The M.A.C.A No. 1832 OF 2005 2 claimants who are the legal heirs of the deceased filed O.P before the Tribunal under Section 166 of the Motor Vehicles Act claiming a compensation of Rs.2,25,000/- alleging negligence against first respondent, the driver of the offending Jeep. 2. Respondents 1 and 2, the driver and owner of the offending Jeep remained absent and were set ex-parte by the Tribunal. The 3rd respondent, the Insurer of the Jeep filed a written statement admitting the policy and further contended that as the said Jeep was used as a taxi which is in violation of the condition of the insurance policy issued and that therefore claimants are not entitled to any compensation from the 6th respondent. The first claimant was examined as PW1 and Exts. A1 to A4 were marked on the side of the claimants. Ext B1 was marked on the side of the respondents. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence on the part of the 1st respondent, the driver of the Jeep and awarded a compensation of Rs. 1,97,000/- with interest at the rate of 7% per annum from M.A.C.A No. 1832 OF 2005 3 the date of petition till realization and proportionate cost. The Insurance company has now come up in appeal challenging the said award. 3. Heard the counsel for the appellant Insurance Company and the counsel for the claimants. 4. The learned counsel for the Insurance Company contended that the offending Jeep was insured as a private vehicle and it was used as a taxi which is in violation of the condition of policy issued in respect of the offending Jeep and that therefore the Insurance Company is not liable to indemnify the owner of the offending vehicle. There is no substance in the above contention. No evidence was adduced by the appellant Insurance Company before the Tribunal to show that the offending Jeep was used as a taxi Jeep. Therefore the above contention of the Insurance Company has only to be rejected. 5. It was further argued by the counsel for the Insurance Company that the deceased was a passenger in the offending Jeep M.A.C.A No. 1832 OF 2005 4 and the policy issued in respect of the said vehicle does not cover the risk of the passengers. There is no force in the above contention. The accident happened while after completing the journey the deceased has alighted from the jeep and was walking along the side of the road. Therefore he can be treated only as a third party whose risk is covered by the policy in respect of the offending vehicle. That being so, the Insurance Company is liable to indemnify the owner of the offending vehicle and is bound to pay compensation to the claimants. 6. In view of the above findings, we find no merit in the appeal and the same has to be dismissed. In the result, the appeal is dismissed. No cost. A.K. BASHEER Judge P.Q. BARKATH ALI pkk Judge