IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 MACA.No. 903 of 2006(A) ----------------------- OPMV.1964/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/3RD RESPONDENT: ---------------------------------- THE ORIENTAL INSURANCE CO.LTD., TRICHUR, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCIH-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.ALEXY AUGUSTINE RESPONDENT(S): CLAIMANT: ------------------------ 1. WILLY VARGHESE, S/O. VARGHESE, KOTTEPARAMBIL HOUSE, ERUMATHALA P.O., NEAR PACHILA MARK, ALUVA. 2. T.G. GIREESH, S/O. GIRIJAN, 111/339, UDAYA NAGAR, THAYAMKERI HOUSE, P.O. ATHANI. 3. RAJEEV THOMAS, S/O. THOMAS, KOTTAKKAL HOUSE, KEEZHMAD, ERUMATHALA P.O., ALUVA. 4. Mr.P.H.JAMAL, S/O HASSAN, PULLOLIL HOUSE, ERUMATHALA P.O., ALUVA. 5. THE NEW INDIA ASSURANCE CO.LTD., KODAVATH SHOPPING COMPLEX, SUB JAIL ROAD, ALUVA, 683 101. ADV. SRI.K.A.SHAMSUDEEN FOR R1 SRI.LAL GEORGE FOR R5 SRI.P.SANTHOSH (PODUVAL) FOR R2 SMT.R.RAJITHA FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.No.1005/06 IN MACA.NO.903/06 //DISMISSED// 14.1.2010 SD/- R.BASANT, JUDGE. SD/-M.C.HARI RANI, JUDGE R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- M.A.C.A.No.903 OF 2006 ----------------------------------------------------- DATED THIS THE 14th DAY OF JANUARY, 2010 J U D G M E N T Basant, J. Insurer is the appellant. First respondent claimed compensation for injuries suffered by him in a motor accident. According to him he was the pillion rider in a motor cycle, which the 2nd respondent was riding and it was owned by the 3rd respondent. It is the case of the claimant/first respondent that the vehicle was insured with a valid policy of insurance by the appellant herein. 2. Various contentions were raised. It is unnecessary to advert to all those contentions. The Tribunal accepted the case of the 1st respondent that he was a pillion rider and that the accident had taken place on account of the negligence of the rider of the vehicle. Accordingly, the court below found the rider as well as the owner of the vehicle liable. As the vehicle was covered by a valid policy of insurance, the Tribunal found that that appellant/3rd respondent, i.e., the insurer of the motor cycle was liable to pay the amounts to the claimant and indemnify the insured. Accordingly, the Tribunal proceeded to pass the MACA.NO.903/06 -2- impugned award. 3. The appellant claims to be aggrieved by the impugned award. What is the grievance? The learned counsel for the appellant submits that even on admitted facts, the appellant has no liability to pay the compensation amount to the 1st respondent/claimant and indemnify the insured. The short contention is that the policy insurance is an 'act only' policy and the act only policy does not cover the pillion rider of the motor cycle. That contention was specifically raised before the Tribunal. But the Tribunal had omitted to consider the same. In these circumstances, it is contended that the appellant deserves to be exonerated from the liability to pay amounts to the 1st respondent/claimant and indemnify the insured. 4. Called upon to respond to the contention, the learned counsel for the first respondent/claimant does not dispute the fact that the policy of insurance is only an 'act only' policy and the pillion rider is not covered under the terms of the policy of insurance. The learned counsel for the appellant relies on the decision in United India Insurance Co.Ltd. v. Tilak Singh 2006(4) SCC 404, i.e. 2006(2) KLT 884. MACA.NO.903/06 -3- 5. In the absence of a challenge against the contention which was pleaded that the policy was only an 'act only' policy and that the same does not cover the pillion rider, it follows that appellant's contention has to be accepted and the appellant has to be exonerated from liability. The challenge in this appeal succeeds. 6. The learned counsel for the 2nd respondent wants to advance a contention that the 2nd respondent is not the real owner and that some other person is the real owner and such person, and not he, has been dealing with the vehicle as the owner for a long period of time. No material whatsoever has been placed before the Court. It is not disputed that the 2nd respondent continues to be the owner as per the registration certificate. We need only mention that rights if any of the owner/2nd respondent against the said person shall remain unaffected by this judgment. 7. In the result: (a) this appeal is allowed. (b) the impugned award in so far as it directs the appellant/3rd respondent/insurer to pay the MACA.NO.903/06 -4- amount to the 1st respondent is hereby set aside. (c) In all other respects the impugned award is upheld. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn