IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 MACA.No. 3022 of 2009() ------------------------------------ OPMV.1245/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/2ND RESPONDENT IN O.P.(MV) ----------------------------------------------------------------- SHIBY, S/O.THOMAS, AGED 40, KUNJANKUDIYIL, MACHIPLAVU.P.O, ADIMALI, IDUKKI DISTRICT. BY ADV. SRI.C.S.MANILAL RESPONDENTS/RESPONDENTS 1 & 3 AND PETITIONER ---------------------------------------------------------------------------------- 1. THAMBI,S/O.POULOSE, CHENNATTU HOUSE, MACHIPLAVU.PO, ADIMALI. 2. ORIENTAL INSURANCE COMPANY LTD, KOTHAMANGALAM. 3. ANNAKUTTY, W/O.PAILY, PAREKUDIYIL HOUSE, PARATHODE, IDUKKI.PO. R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20/09/2010, ALONG WITH MACA NO.3126 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. MACA.No. 3022 of 2009 ORDER ON I.A. NO.3678/2009 IN MACA NO.3022/2009 DISMISSED 20/09/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 3022, 3126, 3141, 3142, 3146, 3147, and 3218 OF 2009 and 24 of 2010 = = = = = = = = = = = = = = = Dated this the 20th day of September, 2010. J U D G M E N T These appeals are preferred against the awards of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)Nos.1245/02, 255/02, 669/02, 257/02, 258/02, 1242/02, 256/02 and 667/02. The point that arises for determination in these appeals are regarding the liability of the insurance company and the liability of the owner with respect to the claim amounts are concerned. It is the case of the claimants that while they were travelling in a private jeep it met with an accident resulting in injuries to the claimants. The insurance company would contend that the policy was issued to the vehicle as a private passenger vehicle but it was used as a public carriage vehicle and the M.A.C.A. NOs. 3022/09 & con. Cases -:2:- policy does not cover the risk of passengers. It is also contended that there is breach of policy conditions as well and there was overloading which also resulted in the breach of policy conditions. The owner who is the appellant before this Court would strongly contend that the persons were travelling in a private vehicle though excess in number and the vehicle was covered by an Act only policy. Now in the light of the contention that the vehicle was covered only by an Act only policy the other contentions regarding overloading of the vehicle as well as breach of policy conditions falls into insignificance. It is true that if a vehicle is insured as a private vehicle and then it is used as a taxi it amounts to breach of policy conditions. So far as the overloading of passengers are concerned the Hon'ble Supreme M.A.C.A. NOs. 3022/09 & con. Cases -:3:- Court has laid down that mere overloading does not amount to total exoneration of the liability but the liability of the insurance company has to be limited to the number of persons permitted to be carried in a vehicle(Anjana Shyam's case, 2007 (3) KLT 993 National Insurance Company v. Anjana Shyam). 2. The most important thing as far as this case is concerned is even if it is admitted as contended by the appellant that it is only a private vehicle covered by an Act only policy then the law gives a total free chit to the insurance company and the insurance company is not liable for the amount. By virtue of the two decisions of this Court reported in New India Assurance Co. Ltd. v. Hydrose (2008 (3) KLT 778) and Mathew v. Shaji Mathew (2009 (3) KLT 813) the Division Bench considered the M.A.C.A. NOs. 3022/09 & con. Cases -:4:- contentions of a package policy and held that the contentions enumerated therein covers the risk of a pillion rider even without premium. The Insurance Regulatory and Development Authority also by a clarificatory circular dated 16.11.2009 made it clear that the persons carried in a private vehicle and persons carried in a two wheeler are covered under the terms and conditions of Standard Motor Package Policy. So the difference is when a vehicle is covered by only an Act only policy it does not cover the risk of persons carried in that private vehicle. But if that vehicle is covered by a package policy by the terms and conditions of the policy passengers are covered. 3. Now so far as this case is concerned the vehicle is covered by an Act only policy. Then the status of a person carried in a vehicle M.A.C.A. NOs. 3022/09 & con. Cases -:5:- covered by an Act only policy is only that of a gratuitous passenger as held in Asha Rani's case. The Hon'ble Supreme Court in the decision reported in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh)2006 (2) KLT 884(SC) has considered the case of a pillion rider in a two wheeler covered by an Act only policy. There the Hon'ble Supreme Court held that he will not be a third party so as to be covered by an Act only policy but he will be only a gratuitous passenger not covered by the policy. The same principle has to be extended to a private car where there is only coverage by an Act only policy. Therefore it has to be held that even if the contention of the appellant is taken note of in these cases by virtue of the fact that it is only an Act only policy the persons carried therein are not covered and M.A.C.A. NOs. 3022/09 & con. Cases -:6:- therefore the insurance company is to be exonerated from the liability. But as far as these cases are concerned the Tribunal made an order about 5 years back directed the insurance company to pay the amount and recover it from the owner and therefore the insurance company has paid the amounts to the claimants. So at least right to recover has to be granted to the insurance company and therefore I hold that the insurance company can recover back the amount which is paid by it towards satisfaction of the award by executing the very same award. Considering the amount involved and the pitiable position argued by the learned counsel for the appellant I am inclined to grant 4 months time to make the payment and I direct the insurance company not to take any coercive steps till the expiry of four months. Revenue recovery M.A.C.A. NOs. 3022/09 & con. Cases -:7:- proceedings, if any initiated be kept in abeyance for this period and thereafter be pursued for realisation of the amount. The appeals are disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-