IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 MACA.No. 1572 of 2009() ----------------------------------- OPMV.586/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/RESPONDENT NO.2 ----------------------------------------------- THE MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., 2ND FLOOR, SWEDESHABHIMANI COMPLEX, NEAR K.S.R.T.C. BUS STAND, NEYYATTINKARA. BY ADV. MR.KKM.SHERIF MR.A.A.ZIYAD RAHMAN RESPONDENTS/PETITIONER AND RESPONDENT NO.1 ------------------------------------------------------------------------------ 1. SASI, R.S.BHAVAN, CHEMPANVILA, KODANGAVILA P.O., ATHIYANNOOR, NEYYATTINKARA. 2. S. KRISHNANKUTTY, T.C.36/358, KAIPPALLY, AMMAVEEDU, NEAR N.S.S.H.S., PALKULANGARA. R1 BY ADV. MR.R.T.PRADEEP, MR.J.ROBINSON. R2 BY ADV. MR.SUBHASH CYRIAC. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 1572 of 2009 ORDER ON I.A. NO.1857/2009 IN MACA NO.1572/2009 DISMISSED 12/10/2009. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.1572 OF 2009 ............................................. Dated this the 12th day of October, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Neyyattinkara in OP(MV)No.586/2003. The insurance company has come up in appeal challenging the finding of its liability to satisfy the award passed under Section 163 A of the Motor Vehicles Act. The claimant in this case was a pillion rider, who sustained injuries in a road accident. Admittedly the vehicle was covered only by an act only policy. When it is only an act only policy and as no additional premium is collected for the coverage of a pillion rider applying the dictum in United India Insurance Co.Ltd. v. Tilak Singh (2006(2) KLT 884(SC) it has to be held that a pillion rider is not covered by the terms of the policy. In that case it was held that status of a pillion rider is not that of a third party and therefore, he is not a person covered by the statutory policy issued under Section 147 of the Motor Vehicles Act. The learned Tribunal relying upon the decision of a Division Bench of the Gujarat High Court in : 2 : M.A.C.A.NO.1572 OF 2009 National Insurance Company Ltd. v. Rukhshaneben Salimbhai Vora and another (2007(2) ACJ 1235) held that since Section 163 A starts with notwithstanding anything contained in the Act it was held that the insurance company cannot raise plea that it is entitled to avoid. But such a defence available to the insurance company is made clear in the decision of the Apex Court reported in National Insurance Co. Ltd v. Swaran Singh (2004 (1) KLT 781.) After elaborately considering the matter, the Apex Court summarized its finding and para 102 (ii) the Apex Court held that “the insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act 1988 inter alia in terms of Section 149(2) (a)(ii) of the said Act.” This question was considered by a Division Bench of this Court in the decision reported in United India Insurance Co. Ltd. v. Rukiya (2006(4) KLT 192). There also following the dictum in Swaran Singh's case it was held that absence of coverage of insurance is a defence available to the insurance company under Section 149(2) of the Motor Vehicles Act. When it is so, the defence : 3 : M.A.C.A.NO.1572 OF 2009 is available to the insurance company. When such a defence is raised and considered, being an act only policy, in the light of the dictum laid in Tilak Singh's case the insurance company is not bound to indemnify the owner. Therefore it has to be held that the insurance company has to be totally exonerated from the liability 2. In the result, MACA is partly allowed and the insurance company is exonerated from the liability and it is made clear that the claimant can realise the compensation from the first respondent in the claim petition Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 4 : M.A.C.A.NO.1572 OF 2009