IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 MACA.No. 2412 of 2009() ---------------------------------- OPMV.915/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT(S)/ 3RD RESPONDENT: -------------------------------------------------- UNITED INDIA INSURANACE COMPANY LIMITED, NEYYATTINKARA NOW REPRESENTED BY ITS DEPUTY MANAGER,REGIONAL OFFICE, "SHARNAYA",HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONER AND RESPONDENTS 1 & 2: ----------------------------------------------------------------------------------- 1. SUDHAKRAN NAIR,S/O.PADMANABHAN NAIR, GEETHA BHAVAN,NANNIYODE,PACHAT.P.O, THIRUVANANTHAPURAM DISTRICT. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS,THIRUVANANTHAPURAM. 3. THANKAPPAN ASARY,S/O.APPU ASARY, THOKKALAKKUZHY MELETHIL VEEDU, PULLAMPARA.P.O, VENJARAMOODU,THIRUVANANTHAPURAM DISTRICT. GOVERNMENT PLEADER SRI . BENNY VARGHESE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2010, ALONG WITH M.A.C.A NO.2428/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN,J. ====================== M.A.C.A. Nos.2412 & 2428 OF 2009 ====================== Dated this the 9th day of March 2010. JUDGMENT These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Attingal, in O.P.(MV).No. 915/2002 and O.P(MV).No. 917/02. The applicants therein had been awarded compensation at the rate of Rs.33,734/- in O.P(MV) No. 915/2002 and Rs.28,712/- in O.P(MV) No. 917/02. It has directed the Insurance Company to pay the amounts . It is against that decision the Insurance Company has come up in appeal raising the contention that the policy issued to the jeep was only act only policy and it does not cover the occupants of the jeep and, therefore, the Insurance Company is not liable to pay the amount. It is also interesting to say that there was no effective valid licence for the driver of the jeep at the time of the accident. The learned Tribunal found that the accident had taken place not on of any mechanical defect and, therefore, M.A.C.A. Nos.2412 & 2428 OF 2009 2 negatived that contention. Motor Vehicle Inspector report revealed that the brake fluid was found drained out. The Tribunal noted that the AMVI did not express an opinion that the occurrence was due to the brake failure. Further, when the vehicle is used, the owner of the vehicle is expected to take precaution and care to see that the vehicle is put on the road in a road worthy condition. Or in other words, the owner of the vehicle is expected to take care to maintain the vehicle perfectly. Therefore, it has to be held that the accident is not an inevitable accident. However, the respondents 1 and 2 had not challenged that finding also before the court. 2. Now comes the serious question. The learned counsel appearing for the parties had made available before me a copy of the policy issued to the vehicle which is an act only policy and where premium is paid to cover the basic 3rd party liability plus additional premium paid to cover additional damages caused to the property of the 3rd party. So the act only policy clearly indicates that it relates to only M.A.C.A. Nos.2412 & 2428 OF 2009 3 the third party risk and nothing else. Now by virtue of the decision in Tilak Singh's case 2006 (2) KLT 884 (SC) United India Insurance Company Ltd. v Tilak Singh the Hon'ble Apex Court has made it clear that the passenger traveling in a private vehicle as well as a pillion rider carried in a two wheeler are not third parties but are gratuitous passengers not covered by an act only policy. Therefore, an act only policy does not cover the risk of passenger carried in a private vehicle. This is further amplified by the clarificatory circular issued by the Insurance Regulatory and Development Authority whereby it is made clear that only the terms and conditions of a standard motor package policy cover the risk of a passenger in a private vehicle or of a person in a two wheeler. I had perused the policy. The policy is very clear that it is issued to a private vehicle and it does not cover the risk of a passenger therein. The tribunal took an extreme view of deemed coverage which is wrong. The Tribunal should have approached the matter differently. It should have held that the owner of the vehicle knew that M.A.C.A. Nos.2412 & 2428 OF 2009 4 police constables have to be carried in the vehicle and, therefore, should have gone for a wider policy to cover the risk of those persons. When law of insurance deals with specific contract between the Insurance Company and insured it is not possible for anybody to infer the theory of implied contract of something which is not contemplated by the parties. Therefore, the finding of the Tribunal that the Insurance Company is liable to pay the amount is against law and, therefore, it is set aside. It is true that there is no valid driving licence as well. Since I have held that the Insurance company is to be totally exonerated from the liability, I am not attempting to go from a larger discussion on that. Further it has to be stated that when there is a licence that has expired, and as the statute mandates to move for renewal within 30 days and if it is not done it will have effect only from the date of renewal. The Hon'ble Apex Court has made it clear if such renewal is made after the period of 30 days, it will not revert back to the original date but will only from the date of renewal. Under Section 3 M.A.C.A. Nos.2412 & 2428 OF 2009 5 of the Motor Vehicle Act, a person who drives a vehicle is to have a current valid driving licence on the date of accident as well. Therefore, that also is a point that has to be answered against the owner and driver of the vehicle. From these discussions I make it clear that the Insurance Company is exonerated from the liability and claimants can proceed against respondents 1 and 2 in the claim petition jointly and severally for the realisation of the amount. Appeals are disposed of accordingly. If any amount is deposited by the Insurance Company, let it be reimbursed to them on appropriate application. M.N.KRISHNAN,JUDGE. mns