IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 MACA.No. 232 of 2008() ---------------------- OPMV.712/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): PETITIONER ---------------------------------- SAJILAL, S/O.RAMACHANDRAN, 28 YEARS, VINEETHA, AROOR P.O., BADAGARA, CALICUT DISTRICT. BY ADV. SRI.V.RAJAGOPAL RESPONDENT(S): RESPONDENTS -------------------------- 1. DR.JEEJESH KUMAR.T.K., S/O.RAJAN, 29 YEARS, JISHA NIVAS, PUTHUPANAM P.O. 2. UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, P.B.NO.52, PORT ROAD, KANNUR. ADV. SRI.A.A.MOHAMMED NAZIR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 232 of 2008 =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 10th day of March, 2010 JUDGMENT Barkath Ali, J. In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.712 of 2001 of the Motor Accidents Claims Tribunal, Thalassery challenges the finding of the Tribunal that second respondent Insurance Company is not liable to indemnify first respondent owner-cum-driver of the vehicle involved in the accident, as the policy does not cover the risk of the passengers in a car. 2. The facts leading to this appeal in brief are these:- On January 13, 2001 at 12.45 p.m. the claimant was traveling along with others in a car bearing registration No. KL- 13C 7113 from Vadakara to Kannur and when they reached at a place called Hussan Motta, due to the negligence of the driver of the car, it went over the road divider and capsized and the MACA 232/08 2 claimant sustained serious injuries. The claimant was working as a teacher in Aroor U.P.School and was earning Rs.6,000/- per month, according to him. It is alleged that the accident occurred due to the negligence on the part of the driver of the car, first respondent. The first respondent as the owner-cum-driver and second respondent as the insurer of the vehicle are jointly and severely liable to pay the compensation to the claimant. The claimant claimed compensation of Rs.5 lakhs. 3. The first respondent remained absent and was set ex parte by the Tribunal. The second respondent Insurance Company filed a written statement, admitting the policy, but contended that the risk of the passengers is not covered by the policy, as the claimant is a gratuitous passenger. 4. The claimant was examined as PW1 and Exts. A1 to A12 were marked on the side of the claimant. Copy of the insurance policy was marked as Ext.B1 on the side of contesting respondent. Certificate of disability was marked as Ext.X1. The Tribunal, on an appreciation of the evidence, MACA 232/08 3 awarded a compensation of Rs.2,44,120/- with interest at the rate of 7% p.a. from the date of petition till realization and costs. The Tribunal found that the second respondent Insurance Company is not liable to pay the compensation, as the policy does not cover the risk of the passengers in a car. The claimant has come up in appeal, challenging the said finding of the Tribunal. 5. Heard the learned counsel for the appellant and learned counsel for the second respondent. 6. The accident is not disputed. The quantum of compensation awarded by the Tribunal is also not disputed. The claimant has only disputed the finding of the Tribunal that the second respondent is not liable to indemnify first respondent owner-cum-driver of the vehicle, as the policy does not cover the risk of the passengers in a car. Therefore, the only question which arises for consideration is whether the said finding of the Tribunal can be sustained? MACA 232/08 4 7. When the appeal came up for consideration, the learned counsel appearing for second respondent Insurance Company conceded that the policy issued in respect of the vehicle is a comprehensive policy and additional premium was paid to cover the risk of the passengers and that therefore second respondent Insurance Company is liable to indemnify the first respondent. So, the appeal has to be allowed. 8. In the result, the finding of the Tribunal that the second respondent Insurance Company is not liable to indemnify the first respondent is set aside. We hold that second respondent Insurance Company is liable to indemnify the first respondent owner-cum-driver of the vehicle. That being so, the second respondent shall deposit the compensation awarded with interest and costs before the Tribunal within two months from the date of receipt of copy of this judgment. The claimant is entitled to proportionate cost. MACA 232/08 5 9. Accordingly, the impugned award is modified to the above extent and the appeal is disposed of as above. Sd/- A.K.BASHEER, JUDGE. Sd/- P.Q. BARKATH ALI, JUDGE. mn /true copy/ P.S. to Judge.