IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 MACA.No. 310 of 2007() --------------------------------- OPMV.417/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): /2ND RESPONDENT -------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY THE DEPUTY MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): PETITIONER & IST RESPONDENT AND SUPPL.RESPONDENT ------------------------ 3RD RESPECTIVELY 1. T.BABURAJ,S/O. KEERAN, AGED 35 YEARS,RESIDING AT THARAYIL HOUSE, PUTTEKKAD FEROKE POST,KOZHIKODE. 2. T.KUTTAYI,S/O. MR.KALI RESIDING AT MAYYANTHOTTATHIL HOUSE, FEROKE POST, KOZHIKODE. 3. SHAHIM ALI, CHIRAMANGALAM, NADUVA POST, PARAPPANANGADI. R1 BY ADV.MR.JIJI THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.403/2007 IN MACA NO.310/2007 DISMISSED 24/11/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 310 OF 2007 = = = = = = = = = = = = = = = Dated this the 24th day of November, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV)417/97. The claimant, a pillion rider sustained injuries in a road accident and he has been awarded a compensation of Rs.44,500/- and the insurance company is directed to pay the amount. Aggrieved by the said decision the insurance company has come up in appeal. 2. Though paper publication has been taken out the owner has not responded to the notice. The short point that arises for determination is the non consideration of the issue properly by the Tribunal. In paragraph 4 of the written statement the insurance company has specifically contended that the insurance policy was in the name of one Shahib Ali and that the policy which was issued was only an Act only policy which did not cover the legal liability of a pillion rider. M.A.C.A. 310 OF 2007 -:2:- Unfortunately the Tribunal did not consider that question properly. The matter requires consideration especially in the back drop of the decision of the Apex Court in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh) 2006 (2) KLT 884(SC) where the Supreme Court held that status of a person travelling as pillion rider in a two wheeler is that of a gratuitous passenger and not a third party covered by the policy and therefore unless extra premium is paid an ordinary policy for a third party would not cover the risk of that person. The policy was also produced before the Tribunal. Unfortunately no proper issue was raised and the fact has not been considered by the Tribunal. Therefore it requires interference at my hands. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal for framing appropriate issues on the liability of the insurance company and permit all concerned to produce both documentary as well as oral evidence in M.A.C.A. 310 OF 2007 -:3:- support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 21.12.2009. M.N. KRISHNAN, JUDGE. ul/-