IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 MACA.No. 2813 of 2009(A) ---------------------------- OPMV.2072/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA. ............................. APPELLANT(S): RESPONDENT NO.2 ------------------------------------------- THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD, NEYYATTINKARA. BY ADV. SRI.KKM.SHERIF RESPONDENT(S): PETITIONER AND RESPONDENT NO.1 ------------------------------------------------------------------ 1. JOHNY @ STALIN BRIGHT, S/O.ASARI NADAR, KANAKUNDAYAM, THEKKEKARA VEEDU, MARAYAMUTTAM DESOM, PERUMKADAVLIA VILLAGE. 2. KESEVAN, SINDHU NIVAS, PANCHIKIDUTHARA VEEDU, MARAYAMUTTAM, PERUMKADAVILA. ADV. SRI.R.GOPAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2813 OF 2009 = = = = = = = = = = = = = = = Dated this the 16th day of December, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Neyyatinkara in O.P.(MV)2072/03. It was an application filed u/s 163A of the M.V.Act. The Tribunal has awarded a compensation of Rs.17,160/- and directed the insurance company to pay the amount. It is against that decision the insurance company has come up in appeal. It is the contention of the insurance company that the policy is only an an Act only policy and it does not cover the risk of a pillion rider in a two wheeler. Since it is an an Act only policy it is squarely covered by the decision of the Apex Court in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh)2006 (2) KLT 884 (SC). It means that insurance company cannot be saddled with the liability. The learned Tribunal held it otherwise on the ground that there is an non obstante clause in 163 A of the M.V.Act and therefore the insurance company cannot M.A.C.A. 2813 OF 2009 -:2:- escape from the liability. Non obstante clause has to be understood in a proper sense and when there is no coverage for the vehicle by virtue of the terms of the policy one cannot force that person to pay the amount. In the decision reported in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) the Apex Court while summarizing the points has held that insurer is entitled to raise a defence in a claim petition filed u/s 163-A or 166 of the Motor Vehicles Act, 1988 inter alia in terms of S.149 (2)(a)(ii) of the said Act. The matter also came up for consideration before a Division Bench of this Court in United India Insurance Co. Ltd. v. Rukiya (2006 (4) KLT 192). It was held that absence of coverage of insurance is a defence available to the insurance company u/s 149(2). The Court held that insurer cannot be held liable for compensation for injuries on insured if there is no personal accident coverage in the policy even in the case of comprehensive policy. So the point that is decided is regarding the availability of the defence to the insurer M.A.C.A. 2813 OF 2009 -:3:- regarding the non coverage. It was held that such a contention can be raised by the insurance company. When it is so, applying the said dictum to the facts of the case and analyzing the policy available it can be seen that being an Act only policy the pillion rider is not covered by the terms of the policy and his status will be that of a gratuitous passenger not covered by the policy. Therefore the finding of the Tribunal making the insurance company liable is not correct and it is liable to be set aside and I do so. In the result the MACA is allowed and the insurance company is exonerated from the liability. But it is made clear that the claimant can proceed against the owner for the realisation of the amount granted in the award. M.N. KRISHNAN, JUDGE. ul/-