IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 MACA.No. 217 of 2010() --------------------------------- OPMV.767/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): 2ND RESPONDENT -------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., KANJIRAPPALLY, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): 1ST RESPONDENT ----------------------------------------------------- GEORGE T.MATHEW, THOOMKUZHIYIL HOUSE, CHENAPPADY P.O., KANJIRAPPALLY (VIA). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2010 , ALONG WITH MACA NO. 222 OF 2010 MACA NO. 223 OF 2010 THE COURT THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. -------------------------------- M.A.C.A.NOS.217, 222 AND 223 OF 2010 -------------------------------------------------------------- Dated this the 7th day of December, 2010 JUDGMENT These appeals are preferred against the common awards passed in OP(MV) 767/2005, 844/2005 and 857/2005 along with some other cases of the Motor Accidents Claims Tribunal, Pala. In OP(MV) No.767/2005 the claimant has been awarded a compensation of Rs.15,500/- in OP(MV) No.844/2005 an amount of Rs.24,000/- has been awarded in OP(MV) No.857/2005 Rs.66,400/- has been awarded. The appeal is preferred by the Insurance Company against the direction to pay the compensation. Insurance Company would contend that the vehicle involved in the accident though registered and policy taken as a private vehicle was used as a taxi at the time of the accident and therefore, there is breach and violation of policy conditions which will exonerate the Insurance Company from the liability. The learned counsel for the Insurance Company in fairness had taken me through the evidence recorded in this case. He had also pointed out to me that initially the owner remained exparte and on evidence the trial Court at least granted an order of reimbursement for the Insurance Company. Subsequently that exparte award was set M.A.C.A.NOS.217, 222 AND 223 OF 2010 2 aside and now the Insurance Company is made available. The contention of the party is to the effect that they were travelling in the vehicle owned and driven by the first respondent in the claim petition to attend a Perunnal not as paid passengers but only as the friends and associates of the first respondent. The Insurance Company would contend that it is not so. They mainly relied upon a report of the Investigating Officer who had been examined as RW2 by name Justin Thomas. As part of his enquiry he had taken a statement from RW1 Elsamma Scaria who is the wife of RW4. According to the company this Elsamma Scaria had given a statement in the form of Ext.B1 to RW2 to the effect that they were travelling as fare paying passengers. It has come out in evidence that the husband of RW1 had been injured in the accident and he had filed OP(MV) No.767/2005. He had been examined as RW4. Elsamma Scaria when examined would depose that the Investigating Officer made her believe that such statement has to be given to get compensation. It has to be remembered when the husband was a claimant before the Court of law it was not proper on the part of the Investigating Officer to have taken statement from the wife. The Court also found that she is not a M.A.C.A.NOS.217, 222 AND 223 OF 2010 3 qualified lady she does not know the implications of this statements. Therefore, the Tribunal felt that the statement relied upon cannot be given value especially in the back drop that she had properly explained the circumstances under which it was given. PW1 is one Chandrabose who is examined as the petitioner in OP(MV) No.857/2005. He had deposed that they had all travelled only as the friends and were not fare paying passengers. RW4 the claimant in 767/2005 examined as witness of the respondent as RW4 had also explained that they were only travelling as friends and not fare paying passengers. The owner of the vehicle had been examined as RW3 and he had also reiterated the same. So the evidence of PW1, RW3 and RW4 supports the case of the petitioners in this case and RW1 has also stated about the same thing. Therefore, there is not much force in the contention of the Insurance Company that the vehicle had been used as a taxi. Further it has to be stated that they were all going to attend a function in a Church and they were all friends and so there is nothing improper in travelling together in one's vehicle to participate in such function. Therefore, materials are totally lacking establish to that they had used the vehicle as a taxi and thereby had committed M.A.C.A.NOS.217, 222 AND 223 OF 2010 4 breach of policy conditions. When there is no breach it has to be stated that vehicle is covered by a package policy and by virtue of clarificatory circular issued by the Insurance Regulatory and Development Authority dated 16-11-2009 the passengers carried in a private vehicle are covered under the terms and conditions of a Standard Motor Package Policy. Therefore, the claimants are covered by the policy and the finding of the tribunal does not suffer from any infirmity. Therefore, all these appeals fail and are dismissed, but without costs. M.N.KRISHNAN,JUDGE pm