IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 MACA.No. 633 of 2009() ---------------------- OPMV.929/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/3RD RESPONDENT ---------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS ADMINISTRATIVE OFFICER, 3RD PARTY WING, OMANA BUILDING, PADMA JUNCTION, KOCHI-35. BY ADV. SMT.RAJI T.BHASKAR RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 2 RESPECTIVELY: ------------------------------------------------------------------------------- 1. SUGIN, S/O.SAJU, (MINOR AGED ABOUT 3 1/2 YEARS), REP. BY HIS FATHER SAJU.K.V., RESIDING AT KANNANGNAMALIL HOUSE, AIROORPADOM P.O., UPPUKANDOM, KOTHAMANGALAM VIA. 2. GINO, S/O.GEORGE, KARIKKODUPUTHANPURAYIL HOUSE, ELANADU P.O., CHELAKKARA VIA, THRISSUR DIST. 3. BINOY ALIYAS, KOOTTAPPILLIL HOUSE, KADAMATTOM P.O., KOLENCHERRY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A NO.798 OF 2009IN M.A.C.A NO.633 OF 20090 DISMISSED. 15/1/2010 (SD/-.M.N KRISHNAN, JUDGE) /TRUE COPY/ P.A TO JUDGE M.N KRISHNAN, J. ------------------------- M.A.C.A No.633 of 2009 -------------------------- Dated this the 15th January, 2010 J U D G M E N T This is an appeal preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P (MV) No.929/02. The claimant was awarded a compensation of Rs.19,400/- and the Insurance Company was directed to pay the amount and it is challenging that decision the Insurance Company has come up in appeal. Though the respondents are served in the appeal, they have not chosen to appear before this Court. 2. Heard the learned counsel for the appellant Company. 3. The contention of the Insurance Company is to the effect that since the vehicle involved is a private car and as the policy issued is only an "Act only Policy", applying the dictum laid down in Tilak Singh's Case, the Insurance Company is not liable to pay the amount or in other words the contention is that the claimant is not a third party but a gratuitous passenger not covered by the policy issued under Section 147 of the Motor Vehicles Act M.A.C.A No.633 of 2009 2 and therefore it has to be exonerated from the liability. 4. A perusal of paragraph 22 of the judgment would reveal that the Tribunal had relied upon a Full Bench decision of this Court reported in Oriental Insurance Company Vs. Ajayakumar [1999 (2) KLT 886]. In that decision, the Full Bench held that any person includes a gratuitous passenger in a private vehicle and therefore he is also covered by the Act only Policy. Much decisions had been rendered thereafter and later another Full Bench of this Court in the decision reported in Mathew Joseph Vs. Janaki [2007 (1) KLT 747] held that the judgment rendered in Oriental Insurance Company Vs. Ajayakumar [1999 (2) KLT 886] relying upon the decision of the United India Insurance Company Ltd Vs. Appukuttan [1995 (1) KLT 807] is wrongly decided and held that gratuitous passengers in transport vehicles including motor cycle can have coverage only when a comprehensive policy or extended policy as might be possible to be issued has been availed of by the owner of the vehicle. M.A.C.A No.633 of 2009 3 5. This decision was based on the decision of the Apex Court in the decision reported in United India Insurance Company Ltd Vs. Tilak Singh {2006 (2) KLT 884] It very clearly held that a statutory insurance policy intended to cover risk to life or damage to properties of third parties will not cover the risk of death or injury to gratuitous passenger carried in a private vehicle. So in the light of these pronouncements, it cannot be held that a passenger carried in a private vehicle covered by the "Act only Policy" is taken in for the reason that his status is that of a gratuitous passenger not covered by the policy. Therefore, the Tribunal has erred in holding that the Insurance Company is liable. The Insurance Company is therefore exonerated from the liability and the claimant is at liberty to proceed against respondents 1 and 2 in the claim petition jointly and severally for realisation of the amount awarded. Appeal is disposed of accordingly. M.N KRISHNAN,JUDGE ma M.A.C.A No.633 of 2009 4 M.A.C.A No.633 of 2009 5