IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 MACA.No. 90 of 2008() -------------------------------- OPMV.838/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA. .................... APPELLANT/3RD RESPONDENT ---------------------------------------------- M/S.UNITED INDIA ASSURANCE CO.LTD., KOTTAYAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM. BY ADV. MR.N.S.MOHAMMED USMAN RESPONDENTS/ PETITIONER & RESPONDENTS --------------------------------------------------------------------- 1. MR.JOBY JACOB, KELIYAMPARAMBIL HOUSE, KONDOOR VILLAGE, THIDANADU KARA. 2. MR.PRASANTH C.R., CHERUSSERIPARAMBIL, PERUNNILAM KARA, POONJAR THEKKEKARA VILLAGE. 3. MR.VINEETH G., S/O.GOPALAN NAIR, KAIPADAYIL HOUSE, AMPARANIRAPPEL PO. THIDANADU. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.90 OF 2008 ............................................. Dated this the 14th day of September, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Pala in O.P.(MV)No.838/2004. The claimant sustained injuries in a road accident while he was travelling as a pillion rider. The Tribunal found that the accident took place on account of the negligence of the rider of the motor bike and further held that the insurance company is bound to indemnify the owner for the reason that the policy covers the risk of a pillion rider as well. 2. The learned counsel for the insurance company has mainly argued two points before me; one is regarding the factum of negligence and the other is regarding the liability of the insurance company. So far as the factum of negligence is concerned, it has to be stated that it is not a general ground that is conferred on the insurance company for the purpose of contesting a case. Unless there is a special permission under Section 170 of the Motor Vehicle Act, it cannot be entertained. Even otherwise the learned : 2 : M.A.C.A.NO.90 OF 2008 trial judge had considered the matter and held that the accident took place on account of the negligence of the rider of the motor bike. So on facts also, it does not require interference. 2. Now the second question is regarding the liability of the insurance company. The insurance company would contend that the claimant being a pillion rider is not covered by the terms of the policy and his status is that of a gratuitous passenger and therefore he cannot be covered in the light of the dictum laid down in Tilak Sing's case. The learned Tribunal in Para 12 of the award had extracted the terms of the policy. In Section 2 of the policy there is an undertaking by the insurance company to cover the death of or bodily injury to any person including occupants carried in the insured vehicle provided such occupants are not carried for hire or reward. In New India Assurance Co. Ltd. v. Hydrose (2008(3) KLT 778) a Division Bench of this Court considered the question of the policy conditions and held that by virtue of the terms and conditions of the policy a person carried in a motor cycle other than for hire : 3 : M.A.C.A.NO.90 OF 2008 or reward is covered by the terms of the policy and therefore no separate premium has to be collected. Then there was a doubt raised in such cases regarding the phraseology but except so far it is necessary to meet the requirements of the Motor Vehicle Act. This question considered later by a Division Bench of this court in the decision reported in Mathew v. Shaji Mathew (2009 (3) KLT 813) and held that the principle laid down in Hydrose's case has to be extended to such cases also. So, in the light of these enunciated principles it has to be held that the insurance company is bound to indemnify the owner. The finding of the Tribunal does not call for any interference. Therefore the appeal is dismissed. M.N.KRISHNAN, JUDGE cl