IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 MACA.No. 939 of 2009() ---------------------- OPMV.2948/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- M/S.UNITED INDIA INSURANCE COMPANY LTD., PARK HOUSE, ROUND NORTH, THRISSUR. BY ADV. SMT.P.A.REZIYA RESPONDENT(S): PETITIONER AND RESPONDENTS 1 & 2 ----------------------------------------------- 1. BAIJU GEORGE, S/O.C.A.GEORGE, CHAKKALAKKAL HOUSE, P.O. KANIMANGALAM, THRISSUR- 6800027. 2. SOJA, C/O.SEBASTIAN, 11/445, PUTHENVEETTIL HOUSE, PRAVATTANI, THRISSUR DT. 3. ANTO, S/O FRANCIS, VAZHAPARAMBIL HOUSE, PADAVARAD, P.O. OLLUR, THRISSUR. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... M.A.C.A.No.939 OF 2009 ............................................. Dated this the 21st day of December, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Trichur in OP(MV)No.2948/2002. The claimant, a pillion rider, sustained injuries in a road accident and the Tribunal has awarded him a compensation of Rs.66,450/=. The insurance company had challenged the liability on the ground that the policy issued is only an Act only policy and therefore it does not cover the risk of the said person. 2. Heard the learned counsel for the insurance company as well as the claimant. As the owner did not receive the notice in spite of intimation, it has been returned as unclaimed and therefore, it had been held as sufficient service. The Tribunal finds the terms and conditions of the policy has the impact of covering a person travelling in the motor cycle and therefore extended the dictum laid down in New India Assurance Company v. Hydrose (2008 (3) KLT 778) and held that the insurance company is liable. But, I : 2 : M.A.C.A.No.939 OF 2009 feel that it is not a proper approach and therefore, the matter has to be decided afresh. In a package policy or a comprehensive policy, the clause is regarding death or bodily injury to any person including persons conveyed in or on the motor cycle provided such persons are not carried for hire or reward. It was this clause which came up for consideration before a Division Bench of this Court in the decision reported in New India Assurance Company v. Hydrose (2008(3) KLT 778) and this Court held that by virtue of the terms and conditions of the policy, the person conveyed in or on the motor cycle is undertaken to be indemnified by the insurance company. The insurance company has produced the conditions of the policy in this case as Ext.B2. There the clause is regarding death or bodily injury to any person so far as it is necessary to meet the requirements of the Motor Vehicles Act. This injury to any person was considered by the Supreme Court in the decision reported in United India Insurance Co. Ltd. v. Tilak Singh [(2006 (2) KLT 884 (SC)] and came to the conclusion that the said clause does not cover the risk of a pillion rider who is only having the : 3 : M.A.C.A.No.939 OF 2009 status of a gratuitous passenger. So, the terms and conditions of the policy, which is described as Act only policy and package policy, are quite different and in the package policy there is a specific inclusion regarding the person conveyed in or on the motor cycle. In the absence of such a clause in the Act only policy, the dictum in United India Insurance Co. Ltd. v. Tilak Singh [(2006 (2) KLT 884 (SC)] is squarely applicable and it has to be held that the pillion rider is not covered by Act only policy. Therefore the finding of the Tribunal is incorrect and it is liable to be set aside and the insurance company is to be exonerated from the liability. 3. Therefore, the MACA is partly allowed and finding of the Tribunal fixing the liability on the insurance company is set aside and it is exonerated from the liability. The claimant is at liberty to proceed against other respondents namely, the owner and the driver for realisation of the amount. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A.No.939 OF 2009