IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 MACA.No. 743 of 2008() ---------------------- OPMV.246/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR .................... APPELLANT/ 2ND RESPONDENT: ----------------------------- NATIONAL INSURANCE CO. LTD., NORTH PARUR, REPRESENTED BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, COCHIN 682 035. BY ADV. SRI.E.M.JOSEPH RESPONDENTS/CLAIMANT & 1ST RESPONDENT: ----------------------------------------- 1. ANIL C.V., AGED 28, S/O.VALSAN, CHETTAKKAL HOUSE, THEKKUMPURAM KARA, CHENDAMANGALAM, NORTH PARUR. 2. FRANCIS K.A., AGED 48, S/O.ANTHAPPAN, KALATHIL HOUSE, GOTHURUTHU, CHENDAMANGALAM, NORTH PARUR. ADV. SRI.G.BALAMURALEEDHARAN (PARAVUR) FOR R2 SRI.MATHEWS V.JACOB (PARAVUR) FOR R2 SRI.N.T.NANDAKUMAR (PARAVUR) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 743/08 ORDER ON IA No. 923/08 IN MACA No.743/08 DISMISSED 17.10.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- M.A.C.A No. 743 OF 2008 --------------------- Dated this the 17th day of October, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, North Paravur, in OP(MV) 246/03. The claimant sustained injuries in a road accident and the Tribunal awarded a compensation of Rs.29,250/- with 7% interest. The Tribunal found that the policy issued is only an Act only policy which does not cover the risk of a pillion rider but directed the Insurance Company to pay the amount and get it reimbursed. It is against that decision, the Insurance Company has come up in appeal. 2. Heard the counsel for the appellant. There is a specific finding by the Tribunal that the policy issued is only an Act only policy and that no extra premium is paid for coverage of the pillion rider. But still the Tribunal directed the Insurance Company to pay the amount and get it reimbursed. 3. The question of pay and recover arises only when the claimant is a third party. Here it is a case where the policy does not cover the risk of a pillion rider. His status is that of a gratuitous passenger as held by the Apex court in New India Assurance Co. MACA No. 743/06 2 Ltd. v. Asha Rani [2003 (1) KLT 165 (SC)]. So the policy does not cover the risk of a gratuitous passenger at all. In the decision reported in National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)] the Apex court directed the Insurance Company for payment and reimbursement for the reason that there was a breach of policy conditions. Here there is no breach of policy conditions but the policy does not cover the claimant at all. Therefore, there cannot be any liability for the Insurance Company to pay the amount. When it is so, the Insurance Company cannot be directed to pay and get it reimbursed. Therefore, the award under challenge is modified and the direction of the Tribunal to the Insurance Company to pay and get it reimbursed is set aside. They are totally exonerated form the liability. The claimant is given liberty to realise the amount from the 1st respondent in the claim application. The appeal is disposed of accordingly. M.N.KRISHNAN, JUDGE vps MACA No. 743/06 3