IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 MACA.No. 429 of 2008(B) ---------------------------------- OPMV.726/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): /3RD RESPONDENT -------------------------------------- NATIONAL INSURANCE CO.LTD., THODUPUZHA, REP. BY THE MANAGER, KOCHI, REGIONAL OFFICE, M.G.ROAD, COCHIN - 682 035. BY ADV. SRI.E.M.JOSEPH RESPONDENT(S): CLAIMANT AND RESPONDENTS 1 & 2 ----------------------------------------------------------------- 1. BABY, AGED 50, S/O.ALIYAS, PUTHODIYIL HOUSE, VELLAKKAYAM BHAGOM, MULLARINGADU KARA, VANNAPPURAM VILLAGE, IDUKKI. 2. VINEESH, S/O.UNNI, PUTHENPURACKAL HOUSE, MULLARINGADU KARA, VANNAPURAM VILLAGE, IDUKKI. 3. INDIRA KRISHNAN, W/O.KRISHNAN, ELANGANAL HOUSE, VELLAKKAYAM BHAGOM, MULLARINGADU, VANNAPURAM, IDUKKI. ADV. SRI.LATHEESH SEBASTIAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 429 OF 2008 = = = = = = = = = = = = = = = Dated this the 8th day of September, 2009. J U D G M E N T This appeal is preferred by the insurance company against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)726/04. The claimant was a passenger in a private jeep which met with an accident. The Tribunal awarded a compensation of Rs.30,000/- and directed the insurance company to pay the amount and get it reimbursed from the owner. It is against that decision the insurance company has come up in appeal. 2. A perusal of paragraph 13 of the award would convincingly establish that the vehicle was only having an Act only policy and the person travelling in the jeep was a gratuitous passenger. Being so he is not covered by the policy. It has been correctly found by the Court below that such persons are not covered by the policy but held that the insurance company has to pay the amount and recover it from the owner. It has to be stated that the said finding of the Tribunal is erroneous for the following reasons. M.A.C.A. 429 OF 2008 -:2:- 3. Even going by the dictum laid down in Swaran Singh's case National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781) the resultant effect is that when there is a policy which covers the risk and there is breach of policy condition committed by the owner then in order to ventilate the grievance of the third party the Court held since the policy covers the risk the insurance company is liable to pay the amount and get it reimbursed from the owner. But in a case where the policy does not cover the risk of a person at all then the question of indemnifying the owner does not arise for consideration or in other words the insurance company has absolutely no liability with respect to a passenger in a private jeep covered by an act only policy. In such cases there cannot be any direction by any Court of law to direct the insurance company to pay the amount and get it reimbursed from the owner. Therefore the said finding is liable to be vacated and I do so. It is also made clear that respondents 1 and 2 in the claim petition namely the owner and the driver are jointly and severally made liable to pay M.A.C.A. 429 OF 2008 -:3:- the amount. In the result the MACA is disposed of as follows. 4. The award passed by the Tribunal is modified whereby the respondent insurance company is exonerated from the liability and the claimant is entitled to realise the amount from respondents 1 and 2 in the claim petition jointly and severally. In case the insurance company has deposited the amount let that amount be reimbursed to them on proper application. M.N. KRISHNAN, JUDGE. ul/-