IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 MACA.No. 634 of 2009() ---------------------- OPMV.196/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY THE DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI - 11. BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): PETITIONERS 1 TO 5 & IST RESPONDENT -------------------------------------------------- 1. MOIDEENKUTTY, EDAKUDUMBAN HOUSE, P.O.VALLIKAPPATTA, MALAPPURAM - 679 324. 2. P.ASSAINAR, S/O.MOHAMMED HAJI, RESIDING AT POONTHALA VEEDU, MORAYOORAMSOM P.O. MORAYOOR, KOZHIKKODE - 673 649. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.634 of 2009 ------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT BASANT, J. The appellant before us was the respondent/insurer before the Tribunal. The claimant staked a claim for compensation for personal injuries suffered by him in an accident which occurred on 30.03.2003. He was a passenger in a private car owned by the 1st respondent, driven by the 2nd respondent and insured with the appellant/3rd respondent. Admittedly there is a valid policy of insurance issued in respect of the vehicle. Admittedly it is a comprehensive package policy. Admittedly the stipulations of the policy are identical to the policy dealt with by a Division Bench of this Court earlier in New India Assurance Co.Ltd. v. Hydrose [2008(3) KLT 778]. Clause II(1) (i) of the policy in the instant case is exactly identical to the clause referred to in New India Assurance Co.Ltd. v. Hydrose (supra). The claimant was thus a gratuitous passenger in a vehicle covered by the package policy. The short question raised is whether the gratuitous passenger in such a vehicle is covered by the terms of the package policy. M.A.C.A No.634 of 2009 2 2. It is first of all crucial to note that a contention that the policy of insurance does not cover liability in respect of the claimant was not ever raised before the Tribunal. The burden is on the insurer to contend and establish that the terms of the policy of insurance which admittedly is not an “Act only” Policy does not cover the liability in respect of the claimant. Neither pleadings or proof is offered in support of such a contention. 3. According to us, the decision in New India Assurance Co.Ltd. v. Hydrose (supra) squarely covers the issue and it is not necessary, at any rate, to admit this appeal to consider the same contention all over again. More over, as stated earlier, such a contention has not been raised at all before the Tribunal. 4. This appeal is, in these circumstances, dismissed in limine. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-