IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 MACA.No. 2193 of 2009() ----------------------- OPMV.317/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): 1ST RESPONDENT ---------------------------- JOEMON K.F., KARALUTHARA HOUSE, VADUTHALA P.O., ERNAKULAM DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR RESPONDENT(S): PETITIONER AND RESPONDENTS NO.2 & 3 -------------------------------------------------- 1. ALEEMA, AGED 34 YEARS, WIDOW OF YUSUF, THODUKADU HOUSE, LPR COLONY, KORATTY KIZHAKKUMMURI VILLAGE, KORATTY EAST P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. AMEERKHAN T.U., AGED 22 YEARS, S/O. LATE THODUKADU YUSUF, THODUKADU HOUSE, LPR COLONY, KORATTY KIZHAKKUMMURI VILLAGE, KORATTY EAST P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. RAZIYA T.U., AGED 19 YEARS, D/O. LATE THODUKADU YUSUF, THODUKADU HOUSE, LPR COLONY, KORATTY KIZHAKKUMMURI VILLAGE, KORATTY EAST P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 4. ABDUL SALEEM T.U., AGED 17 YEARS, MINOR, REP.BY MOTHER NATURAL GUARDIAN, ALEEMA, WIDOW OF LATE YUSUF, THODUKADU HOUSE, LPR COLONY, KORATTY KIZHAKKUMMURI VILLAGE, KORATTY EAST P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 5. SHAJU M.I., S/O. MYPPAN ITTIANY, MYPPAN HOUSE, KORATTY EAST P.O., THRISSUR DISTRICT. 6. UNITED INDIA INSURANCE COMPANY LTD., SHARANYA, HOSPITAL ROAD, COCHIN. ADV. SRI.P.V.BABY FOR R1 T0 4 SRI.A.N.SANTHOSH FOR R1 TO 4 SRI.T.J.LAKSHMANAN IYER FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21/02/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2193 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the first respondent in O.P.(MV)No.317/2003 on the file of Motor Accidents Claims Tribunal, Irinjalakkuda. He is the owner of the motor cycle bearing Reg.No.KL7/AH 8113 involved in a motor accident. In this appeal, he challenges the judgment and award of the Tribunal in so far as the Tribunal has exonerated the Insurance company and directed the appellant and respondent No.2 in the O.P. to pay a compensation of Rs.7,30,200/- to the claimant who sustained injuries in that accident. 2. The facts in brief are these : The accident occurred on February 17, 2003, while deceased Yusuf was pillion riding on the motor cycle bearing Reg.No.KL-7/AH 8113. When he reached at JTS Junction, Koratty, the motorcycle overturned and the deceased sustained serious injuries and he succumbed to the injuries sustained while undergoing treatment in the MACA.No.2193/2009 2 hospital. Appellant/first respondent in the O.P. was the registered owner of the vehicle. Alleging negligence against the second respondent in the O.P., the claimants, who are the wife and minor children of deceased Yusuf, filed the O.P. before the Tribunal claiming a compensation of Rs.8,69,000/-. 3. Respondents 1 and 2 in the O.P., the owner and the rider of the offending motor cycle though entered appearance, did not file any written statement before the Tribunal. The third respondent in the O.P. the insurer of the offending motor cycle filed a written statement admitting the policy, but contended that the pillion riders are not covered by the policy issued by the company. 4. Exts.A1 to A7 were marked on the side of the claimant before Tribunal. Exst.B1 and B2 were marked on the side of the contesting third respondent. On an appreciation of evidence the Tribunal found that the accident occurred due to the negligence of the rider of the motor cycle, the second respondent in the O.P. and awarded Rs.7,30,200/- with interest @ 7% per annum from the date of petition till realisation and proportionate cost against respondents 1 and 2 in the MACA.No.2193/2009 3 O.P. The Tribunal exonerated the third respondent/Insurance Company in the O.P. and directed respondents 1 and 2 in the O.P., the owner and the driver of the offending motor cycle to pay the compensation on the ground that the risk of the pillion rider is not covered under the policy issued in respect of the offending vehicle. The first respondent in the O.P. has now come up in appeal challenging the said finding of the Tribunal exonerating the Insurance company from the liability. 5. Heard the counsel for the appellant and the counsel for the Insurance Company. 6. The Tribunal exonerated the Insurance Company on the ground that the deceased was a pillion rider in the offending motor cycle whose risk was not covered by the policy issued in respect of the offending vehicle. But when the appeal came up for hearing today, learned counsel for the Insurance Company fairly conceded that the policy issued in respect of the offending vehicle is a comprehensive policy and therefore the risk of the deceased who was the pillion rider of the motor cycle was also covered by the policy. That being so, the appeal has to be allowed and the Insurance Company has to be directed MACA.No.2193/2009 4 to pay the compensation amount awarded by the Tribunal. In the result, the appeal is allowed. The third respondent, Insurance Company of the offending vehicle, shall deposit the compensation amount awarded by the Tribunal with interest and cost within two months from the date of receipt of a copy of this judgment. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. 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