IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 MACA.No. 309 of 2008() ---------------------- OPMV.876/2003 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT/2ND RESPONDENT: ----------------------------------------- THE ORIENTAL INSURANCE CO.LTD., CHANGANACHERRY, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/CLAIMANTS/IST RESPONDENT: ------------------------------------- 1. ANNAMMA OOMMAN, KILIROOPARAMBIL HOUSE, MEENADOM VILLAGE, KOTTAYAM. 2. JIBIN KURIAKOSE (MINOR), S/O.DECEASED K.J.KURIAKOSE, KILIROOPARAMBIL HOUSE, MEENADOM VILLAGE, KOTTAYAM. 3. JINA ANN KURIAKOSE (MINOR), D/O.DECEASED K.J.KURIAKOSE, KILIROOPARAMBIL HOUSE, MEENADOM VILLAGE, KOTTAYAM. 4. JERIN KURIAKOSE (MINOR) S/O.DECEASED K.J.KURIAKOSE, KILIROOPARAMBIL HOUSE, MEENADOM VILLAGE, KOTTAYAM. 5. K.K.JOHN, (FATHER OF THE DECEASED) KILIROOPARAMBIL HOUSE, MEENADOM VILLAGE, KOTTAYAM. 6. ANNAMMA JOHN, (MOTHER OF THE DECEASED) KILIROOPARAMBIL HOUSE, MEENADOM VILLAGE, KOTTAYAM. MACA.309/08 RESPONDENTS 2, 3 & 4 ARE MINORS AND ARE REPRESENTED BY THEIR GUARDIAN AND NEXT FRIEND (MOTHER ANNAMMAOOMMAN FIRST PETITIONER) 7. RIJI P.I. S/O.ISSAC, POIKATHALAKKAL HOUSE, PATHAMUTTOM P.O., KOTTAYAM. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.A.C.A.NO.309 OF 2008 ------------------------------------- Dated 14th day of February, 2008 J U D G M E N T Koshy,J. A widow aged 39 years with three minor children along with parents of a scooterist, who died in a motor accident on 22.9.2002 applied for compensation under Section 163A of the Motor Vehicles Act. In the written statement, main contention taken by the Insurance company was that accident arises due to the negligence of the scooterist, and therefore, the compensation is not payable. Tribunal correctly decided that negligence is not a matter to be considered while considering a petition filed under Section 163 A. It is based on strict liability principle and negligence aspect cannot be looked into. It is submitted that claim under Section 163A can be filed only by a third party and rider is not covered under the policy. Ext.B1 M.A.C.A.309/08 2 was a comprehensive policy. There was no specific contention raised in the written statement by the Insurance company before the tribunal that rider and pillion riders are not covered under the policy. It is settled law that if the Insurance company disputes the liability, it is for them to plead and prove. In the absence of any contentions in the written statement that rider is not covered under the policy, we are unable to take such a contention especially Ext.B1 policy shows that it was a comprehensive policy. Apart from the above, the major contention raised in the appeal is that since the accident occurred due to the negligence of the rider himself, his relevant representatives are not entitled to compensation as there is difference between Sections 140 and 163A. The negligence aspect need not be proved in a petition filed under Section 163A also. Of course, Section 140 can be filed only in 166 application as an interim measure. A full Bench decision of this Court in National Insurance Co. Ltd. v. Malathi C. Salian (2003 (3) KLT 460) held that Insurance company cannot strict the liability in a petition filed under Section M.A.C.A.309/08 3 163A by the legal representatives of a rider of the vehicle on the ground of his own negligence. We see no ground to interfere in the impugned award, and hence, this appeal is dismissed. J.B.KOSHY JUDGE K.HEMA JUDGE prp