IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 MACA.No. 657 of 2009(G) ---------------------- OPMV.442/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S)/PETITIONER: ---------------------------------- JINESH,S/O JOSEPH, AGED 26, THAIPARAMBIL HOUSE, NEAR KAPIKKADU TEMPLE, KAPIKADU P.O., MUTTUCHIRA VILLAGE, VAIKKOM TALUK, KOTTAYAM DIST, REP. BY HIS P/W HOLDER K.P. JOSEPH, 56 YEARS,RES. AT THAIPARAMBIL HOUSE, NEAR KAPIKKADU TEMPLE, KALLARA P.O., MUTTUCHIRA VILLAGE, VAIKKOM, KTM. BY ADV. SRI.P.M.JOSHI RESPONDENT(S)/RESPONDENTS: --------------------------------------- 1. ABRAHAM THOMAS, NIRMALA BHAVAN, KALLARA P.O., KAPIKKADU KARA, KOTTAYAM DIST. 2. ANISH, S/O. ABRAHAM, NIRMALA BHAVAN, KALLARA P.O., KAPIKKADU KARA, KOTTAYAM DIST. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, TRIO CHAMBERS, KANJIKUZHY, KOTTAYAM DIST. ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 657 OF 2009 = = = = = = = = = = = = = = = Dated this the 20th day of October, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)442/02. The claimant, a pillion rider sustained injuries in a road accident and the Tribunal has awarded a reasonable compensation of Rs.35,079/- with which I do not propose to interfere. Then the only question survives for determination is regarding the liability of the insurance company to pay the amount. Learned counsel for the appellant had produced before me for perusal a copy of the policy which is a comprehensive policy where premium has been paid for own damage property risk and also third party risk as well as additional premium for third party's property damages. So by payment of premium one cannot hold that a pillion rider is covered. But two Division Benches of this Court had the opportunity to consider the terms and conditions of the policies attached to these types of comprehensive policies. M.A.C.A. 657 OF 2009 -:2:- In the decision reported in New India Assurance Co. Ltd. v. Hydrose (2008 (3) KLT 778), the Court considered the question where there was a condition to the effect death or bodily injury to any person including persons conveyed on the motorcycle provided such persons are not carried for hire or reward. In that case the Court held that since the terms and conditions of the contract itself covers the risk of a person by virtue of the contract no additional premium is necessary and therefore the insurance company was made liable. In the decision reported in Mathew v. Shaji Mathew (2009 (3) KLT 813) another Division Bench considered this decision as well as the additional clause. In some of the policies there is a condition stated as “except so far as it relates to the liability under the M.V.Act” and in that decision also the Division Bench held that just because of that additional clause one cannot deprive the benefit that is conferred under the Hydrose's case. But unfortunately in the case before me the conditions of policy had not been produced before Court. The Tribunal was right in holding that by virtue of non payment of premium the policy will not cover the risk of a pillion rider. But it has to be held that the M.A.C.A. 657 OF 2009 -:3:- policy is preceded and attached with conditions and that also forms part of the insurance contract which requires consideration by the courts. Learned counsel for the insurance company would contend that in view of the Insurance Act unless premium is paid there is no liability on the insurance company. These are all matters which requires consideration and therefore I set aside the finding so far as the interse liability between the owner and the insurance company is concerned and the liability to pay the compensation by the insurance company to the claimant and permit all the parties concerned to produce documentary as well as oral evidence in support of their respective contentions and the insurance company is further directed to produce the conditions of the policy covered in this case for proper consideration by the Court. The Court can hear the matter and dispose it of in accordance with the latest decision on the point at the relevant point of time. Parties are directed to appear before the Court below on 1.12.2009. M.N. KRISHNAN, JUDGE. ul/-