IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 RP.No. 452 of 2010() -------------------- ( IN M.A.C.A.NO.586 OF 2006 ) REVIEW PETITIONER(S): PETITIONER/3RD RESPONDENT ----------------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI - 18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENT(S): APPELLANT/RESPONDENTS 1 & 2 ------------------------ 1. M.S.ALIYAR, S/O.SYED, MARANGATTU HOUSE, MULAVOOR P.O., MUVATTUPUZHA. 2. ABU P.M., S/O MAKKAR, PUTHUSSERIKUDY HOUSE MULAVOOR, PUTHUPADY P.O., KOTHAMANGALAM 3. ABUBACKER M.M., S/O MOHAMMED, MARANGATTU HOUSE, MULAVOOR VILLAGE, MUVATTUPUZHA THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.P. No.452 OF 2010 IN M.A.C.A.No.586 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of June, 2010 ORDER Basheer, J. This review petition is filed by respondent No.3, Insurance Company, in the appeal which was disposed of by us on February 11, 2010. 2. In the appeal, this court found that respondent No.1/appellant was in fact travelling as a pillion rider as contended by him. The finding entered by the Tribunal in this regard was set aside and the appeal was remitted to the Tribunal with a direction to quantify the amount of compensation that respondent No.1/appellant would be entitled to get. 3. Sri.Mathews Jacob, learned senior counsel, who appears for the review petitioner submits that while remitting the case to the Tribunal, this court ought to have made it clear that it will be open to the review petitioner to raise the question of its liability to indemnify the owner of the vehicle especially since the specific case of the review RP.No.452/2010 2 petitioner was that an “Act only policy” had been issued by the company in respect of the vehicle. 4. Per contra, it is contended by learned counsel for respondent No.1/appellant that such a contention was never raised by the review petitioner in the written statement filed by it before the Tribunal. According to the learned counsel, this contention has now been raised by the review petitioner for the first time to wriggle out of its liability to indemnify the owner in view of the subsequent decision of the Apex Court in United India Insurance Co.Ltd v. Tilak Singh ( 2006(2) KLT 884(SC). Learned counsel submits that in the absence of a specific pleading with regard to non-liability before the Tribunal, it is too late in the day for the appellant to raise such a contention at the fag end of the case. 5. As rightly pointed out by the learned counsel, going by the settled position of law as it then stood in the year 2001, when the accident took place, the Insurance Company would have been liable to indemnify the owner of a two wheeler if the pillion rider was injured. But now such a liability is fastened on the insurer, only if it is a RP.No.452/2010 3 package policy. It is true that the review petitioner had stated before the Tribunal that it had issued only an “Act only policy” in respect of the vehicle. But no specific contention was raised that under the “Act only policy”, the pillion rider would not be covered. Obviously, such a contention is now being raised in view of the subsequent decision of the Apex Court in this regard. Any how, having regard to the entire facts and circumstances of the case, we make it clear that it will be open to the review petitioner to raise its contentions before the Tribunal regarding its liability to indemnify the owner. The Tribunal shall take a decision in the matter in accordance with law. Adequate opportunity shall be afforded to the parties to adduce further evidence, if any, in the matter. Review Petition is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. RP.No.452/2010 4 RP.No.452/2010 5