IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 MACA.No. 2420 of 2008(G) -------------------------------- OPMV.598/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): 3RD RESPONDENT -------------------------------------- THE ORIENTAL INSURANCE CO. LTD., KOTHAMANGALAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S)/CLAIMANT: ------------------------------------ 1. SHEELA, W/O. SUBRAMANIYAN, KIZHENCHERIYIL, VELLATHOOVAL.P.O. 2. GEORGE VARGHESE, ATTUPARAMBIL, VELLATHOOVAL.P.O IDUKKI. 3. REJI SCARIA, KALLOORKATTU, KONNATHADY.P.O, MUTHIRAMPUZHA. ADV. SRI.C.K.VIDYASAGAR FOR R1 SRI.P.CHANDY JOSEPH FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2420 OF 2008 = = = = = = = = = = = = = = = Dated this the 30th day of September, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)598/04. The claimant, while stepping into a jeep, on account of the rash and negligent driving, fell down and sustained injuries. The Tribunal has awarded a compensation of Rs.22,300/-. It also found that the claimant was not a third party but directed the insurance company to pay the amount and get it reimbursed from the owner. It is challenging that finding the insurance company has come up in appeal. 2. Both the respondents are served. They have not chosen to defend the case. The short point that arises for determination is whether a person attempting to board into a bus is a passenger or a third party and whether an Act only policy will cover the risk if he is a passenger. The vehicle involved is a private jeep and if the status of the claimant is that of a passenger then the Act only Policy question will M.A.C.A. 2420 OF 2008 -:2:- loom large. By virtue of the decision of the Apex Court as early as in 1997 ACJ 1 (Noorjahan v. Sultan Rajia and others) the status of the persons alighting or boarding is that of a passenger and therefore the question that whether the claimant was a passenger is squarely covered by this decision. That has been reiterated by the Delhi High court in the decision reported in 2002 ACJ 2037 (Krishnan Lal Baweja v. Sudershan) wherein also reference is made to the dictum laid down in 1997 ACJ 1(SC). So the status of the person is that of a passenger. She is a passenger of a private jeep which has got only an Act only policy. The Apex Court in very many decisions including the decision in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh)2006 (2) KLT 884(SC) has considered this point and it has been held that the status of such persons are equivalent to that of a gratuitous passenger and not a third party and therefore unless the policy covers the risk of such persons by paying wider premium the insurance company cannot be saddled with the liability. Now the Tribunal has M.A.C.A. 2420 OF 2008 -:3:- directed the insurance company to pay the amount and get it reimbursed. When there is no liability for the insurance company by virtue of the fact that it is only an Act only policy the question of indemnifying the insured does not arise and therefore a person who has absolutely no liability at all cannot be saddled with the liability to pay and reimburse. In Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) the Apex Court considered the question and it was held with reference to a third party and when there is a breach of policy condition the third party shall not be put into peril and so a direction was given for payment of the insurance company with a right to recover it from the owner. As far as this case is concerned the policy does not cover the risk of a person involved in the accident. The insurance company has absolutely no liability at all and so it is not a breach of policy conditions but it is a total exoneration of liability of the insurance company. In the result the MACA is partly allowed and the award under challenge is modified and the insurance company is M.A.C.A. 2420 OF 2008 -:4:- totally exonerated from the liability and the claimant is entitled to realise the said amount from respondents 1 and 2 jointly and severally. If any amount deposited by the insurance company is in court's deposit let it be reimbursed to the company on proper application and if any amount has been paid pursuant to the order of the court then the insurance company will have the right to recover from the owner. M.N. KRISHNAN, JUDGE. ul/-