IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 MACA.No. 18 of 2007() --------------------- OPMV.202/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/3RD RESPONDENT: -------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., KOLLAM NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): --------------- 1. SAJMI (MINOR) REPRESENTED BY HER FATHER AND GUARDIAN THAHA KUNJU, S/O.JALALUDHIN KUNJU, MAKKULATHU, SHANTI NAGAR 45, KANNIMELCHERRY, KILIKOLLOR, VIA KOLLAM. 2. SALIL KUMAR. M.S., S/O.G.MURALEEDHARAN SUDHA MANDIRAM, KILIKOLLOOR, VIA.KOLLAM. 3. B. MURALI, S/O.BHASKARAN, VELINTHARA VEEDU, KANNIMELCHERRY, KILIKOLLOOR, VIA KOLLAM. ADV. SRI.AJAYA KUMAR. G FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, ALONG WITH MACA NO. 23 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos. 18 & 23 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of June, 2009 JUDGMENT Joseph, J. These appeals are filed against the common award passed in M.V.(O.P.) Nos. 202 and 247 of 2003 on the file of the M.A.C.T., Kollam. The appellant is the third respondent in the said Original Petitions. 2. Heard the learned Senior Counsel Shri.Mathew Jacob for the common appellant and the learned counsel Shri.G. Ajayakumar, appearing for the first respondent in both these appeals. 3. Apparently the claimants were travelling in a Tata Sumo Car, which collided with another vehicle. The Tribunal found favour with the contention of the claimants regarding negligent driving. In O.P.(M.V.) 202 of 2003, filed by the minor, for the injuries suffered by her, an amount of Rs.2,82,800/- was M.A.C.A.Nos. 18 & 23 of 2007 2 awarded. In O.P.(M.V.) 247 of 2003 the Tribunal has awarded an amount of Rs.81,300/- 4. The learned Senior Counsel for the appellant in both cases would essentially raise two contentions. He would submit that the vehicle in question was covered only by an Act policy. The claimants were passengers purported to be in a private car. Therefore, he contended on the strength of the decision in United India Insurance Co. Ltd. V. Tilak Singh (2006 (2) KLT 884 (SC) that they are not covered by the terms of the act policy and therefore the Tribunal erred in directing the appellants in both the cases to pay compensation amount. 5. The second contention taken is that this is a case, where the vehicle was actually used as a taxi and therefore it squarely attracts Section 149(2)(a)(i) of the Motor Vehicles Act. He also pointed out that the quantum of amount awarded is exorbitant. Per contra the learned counsel for the claimants would submit that eventhough it is true that the policy may not cover the passengers in the vehicle, this court may atleast sustain the direction against the appellant and permit M.A.C.A.Nos. 18 & 23 of 2007 3 them to recover the amount from the owner. The learned counsel would point out that having regard to the nature of the injuries sustained, the amount awarded is only to be supported. 6. It is not in dispute that the policy, which appears to be the premise of the two contentions, has not been produced before Court to prove the contentions. It is unavoidable that the policy be produced. No doubt, the learned Senior Counsel for the appellant submits that the policy can be produced at any stage. 7. The learned counsel for the claimants points out that no contention has been taken before the Tribunal that there was only an act policy and what was contended was that there is violation of the policy. Admittedly the policy has not been produced in support of the contentions. 8. There cannot be any quarrel with the proposition that if it is only an act policy passengers in a private car would not be covered by the same. The learned counsel placed reliance on the decision in United India Insurance Co. Ltd. (supra). No doubt, the learned M.A.C.A.Nos. 18 & 23 of 2007 4 Senior counsel submits that the case may be remanded. He also submits that law permits production before this Court. We take note of the facts of these cases, in particular, the case of the minor. We further note that this Court has already directed 50% of the amount to be deposited. We would think that the interests of justice would be best sub served if we modify the award and permit the respondents to withdraw the amounts, which have been deposited by the appellants. But it is further ordered that the award of the Tribunal is modified and the direction to recover the amount from the appellant, except the amount deposited, is vacated. 9. The appeals are allowed as above. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm