IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 MACA.No. 2382 of 2007() ----------------------- OPMV.341/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT(S): APPELLANT IN MACA/PETITIONER IN OP(MV) ----------------- SAJI V.MATHEW, S/O MATHEW, VELLIMANNIL HOUSE, CHAMPAKARA P.O., KARUKACHAL. BY ADV. SRI.A.P.SUBHASH RESPONDENT(S): RESPONDENTS IN O.P(MV) ------------------- 1. A.V.VARGHESE, KANDANKERIL HOUSE, MEDUMKUNNAM P.O., KOTTAYAM DISTRICT. 2. SUNNY PHILIP, KATHRAPPALLY HOUSE, KURISUMMOODU P.O., CHANGNASSERRY, KOTTAYAM DISTRICT. 3. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., CHANGANASSERY, KOTTAYAM. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ. ------------------------------- M.A.C.A. No.2382 of 2007 ------------------------------- Dated this the 23rd December, 2009 J U D G M E N T Ramachandra Menon, J. The claimant who sustained injuries in a Road Traffic Accident is the appellant before this Court. The main grievance projected in the appeal is against the exoneration of the Insurance Company from satisfying the liability, wrongly holding that the policy does not cover the liability in respect of a person like the appellant who was travelling as a pillion rider on the vehicle. 2. The sequence of events shows that the appellant/claimant was proceeding as a pillion rider on the motor cycle bearing Registration No.KL-5/A-8499 on 27.4.1997, at about 1.45 p.m., and allegedly because of the negligence on the part of the rider of the motor cycle, it capsized on the side of MACA.No.2382 of 2007 2 the road, causing injuries to the claimant, which led to the claim petition filed before the Tribunal 3. The owner and rider of the motor cycle did not choose to contest the matter and hence they were set ex parte. The claim was contested only by the Insurer, stating that the claimant was actually the rider himself and that he was not travelling as a pillion rider, as stated in the claim petition. 4. The evidence consists of the documents produced and marked as Exts.A1 to A8 on the part of the claimant, and copy of the policy produced by the Insurer as Ext.B1. No oral evidence was adduced by either side. On conclusion of the trial, the Tribunal, based on the evidence on record, arrived at a finding that the claimant was travelling as a pillion rider on the motor cycle and that the accident was only because of the rash and negligent riding of the motor cycle by the first respondent before the Tribunal. The latter part of the said finding on negligence appears to have been made without noting the fact that the claim was preferred under Section 163A MACA.No.2382 of 2007 3 of the Motor Vehicles Act. After considering the nature of the injuries sustained and the consequences resulted, the Tribunal awarded various amounts under the permissible heads, granting a total compensation of Rs.3,81,500/-, which was directed to be satisfied with interest at the rate of 9%, from 25.3.1999 till realisation, with proportionate cost. However, the Tribunal observed that the liability had to be satisfied by the owner and rider of the motor cycle, while the Insurer was exonerated from the liability, which in fact is the subject matter of challenge in this appeal. 5. The learned counsel appearing for the appellant/claimant has made available before us a copy of the policy for perusal, asserting that the policy was never an 'Act only policy' and that it was very much a 'Comprehensive policy', wherein a sum of Rs.363/- was collected in respect of the 'own damage' as distributed under various heads, besides the third party premium collected. True, no separate premium was collected in respect of the pillion rider. But it was also brought MACA.No.2382 of 2007 4 to the notice of this Court, that, in view of the recent clarification issued by the Insurance Regulatory and Development Authority, as per Circular dated 16.11.2009, in case of a 'Package policy/Comprehensive policy', the passenger in a private vehicle including the pillion rider on a two wheeler will stand very much covered automatically, without any separate additional premium. This being the position, the finding of the Tribunal, accepting the version of the Insurer, does not hold any water at all. More so, as rightly pointed out by the learned counsel for the appellant, there was absolutely no contention for the Insurer, by raising any specific pleading to the effect that the policy was an 'Act only policy' and that there was no coverage as such. The only dispute was regarding the identity of the person who was riding the vehicle, which however has been found against the Insurer. 6. In the above facts and circumstances, we find that the contention raised by the appellant has to be sustained. Accordingly, the finding of the Tribunal absolving the Insurer MACA.No.2382 of 2007 5 from the liability is set aside. The third respondent, Insurance Company, is directed to satisfy the entire liability, which shall be effected, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. It is also made clear that as and when the deposit is made, the appellant will be at liberty to approach the Tribunal for getting disbursement. The appeal is allowed to the above extent. No cost. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.