IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 MACA.No. 1134 of 2010 --------------------------------- [O.P(MV).NO.2829/2002 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR DATED 17/09/2009] .................... APPELLANT/3RD RESPONDENT: ----------------------------------------------- THE NEW INDIA ASSURANCE CO.LTD., REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGER. BY ADV. SRI.V.P.K.PANICKER. RESPONDENTS/RESPONDENTS 1 & 2 & PETITIONER: ---------------------------------------------------------------------------- 1. C.K.HARI, S/O.KRISHNAN, CHELAMPATTA HOUSE, PAINKULAM P.O., CHERUTHURUTHY, THRISSUR DISTRICT. 2. RANJEEV, S/O.UNNIKRISHNAN, KARUTHETIL VEEDU, VELUTHOOR DESOM, THRISSUR DISTRICT. 3. V.R.JAYAN, S/O.RAMU, VADAKKUMTHULLY HOUSE, VELUTHOOR DESOM, PARAKKAD, THRISSUR DISTRICT. R3 BY ADV. SRI.SHOBY K.FRANCIS. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. R. BASANT & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- M.A.C.A.No.1134 of 2010 ---------------------------------------------------- Dated this the 28th day of July, 2011 Judgment Basant, J. The insurer is the appellant. The third respondent/claimant had staked a claim against the owner, rider and insurer of a motor cycle in which he was travelling at the time of accident as a pillion rider. According to the claimant, he suffered injuries on account of the negligence of the rider of the vehicle. He therefore contended that the driver primarily, the owner vicariously and the appellant as insurer are liable to compensate him. The other respondents, though served, did not raise any contentions. The insurance company took up a plea that pillion rider of a motor cycle is not covered under policy of insurance. The claimant did not accept this. The claimant wanted the insurance company to produce the policy documents. On the plea that the original of the policy document is with the insured, the insurance company produced Ext.C1, a copy of policy. According to the insurance company, the policy was an 'Act only' policy. But Ext.C1 shows that in addition to the premium leviable for 'Act only' policies MACA 1134/10 2 (Rs.160/-), a further amount of Rs.50/- had also been collected as premium. The claimant evidently, as encouraged by the owner, took up a plea that the real copy of the policy is not produced and the insurer was trying to take the claimant as also the court for a ride. The claimant therefore produced the copy of the policy of insurance which was issued to the insured/owner. That copy was marked as Ext.B2. The claimant wanted the insurer to produce the carbon copy of the policy kept by the insurance company. Thereupon, Ext.C1 was produced by the insurance company. When Exts.B1, B2 and C1 were compared, the court found that Ext.B1 produced by the insurance company originally was not a faithful copy of Exts.B2 and C1. 2. Now, we will advert to the incongenity between the two. All the three - Exts.B1, B2 and C1 show that in addition to the premium of Rs.160/- leviable for 'Act only' policies, a further amount/premium of Rs.50/- had been collected. On that aspect there is no dispute now. However, Ext.B1 shows that the said amount of Rs.50/- was collected towards “compulsory PA to owner driver”. It is on seeing this endorsement and dissatisfied with the genuineness of Ext.B1 produced by the insurance MACA 1134/10 3 company that the claimant wanted to produce the copy received by him from the insured and called upon the insurance company to produce the carbon copy retained by the insurance company. Both those documents, i.e., Exts.B2 and C1 show that the amount of Rs.50/- was not collected with the statement that it is “compulsory PA to owner driver”. It was collected under the head “add PA to passengers”. Capitalising on this, the claimant contends that the passenger in the motor cycle, ie. the pillion rider who was travelling in addition to the rider was also covered under the policy. 3. The doubts and suspicions of the Tribunal were generated, the Tribunal wanted the official of the insurance company to be examined. He was examined as C.W.1. As directed by the court, he produced Ext.C2 also. His evidence clearly shows that Exts.B2 and C1 are the copies of the real policy issued and Ext.B1 is not a faithful. The non-production of Ext.C1 earlier and the evident complicit between Ext.B1 on the one hand and Exts.B2 and C1 on the other assumed justifiable suspicion in the mind of the court. 4. The learned counsel for the insurance company takes MACA 1134/10 4 pains to explain that there has been a subsequent change in the form of insurance policies issued. Originally, the additional premium collected - Rs.50/- always used to be described as “add PA to passengers.” According to the learned counsel, this means that additional premium was collected to cover only one passenger, ie. the rider of the motor cycle. He tries to explain further that under this endorsement of “add PA to passengers”, along with that appears the words “number zero amount zero”. According to the learned counsel, the words 'number zero amount zero' indicates that no premium was collected for the non-rider passengers in the motor cycle. 5. This explanation was not accepted by the court. The court further noted that in page 59 of Ext.C2 under Section 2, liability to third parties, it is stated that the policy will cover death or bodily injury to any person conveyed in or on the motor cycle provided that such person is not carried for hire. All these put together the Tribunal came to the conclusion that the appellant-insurance company cannot be permitted to dispute the liability to pay the amount of compensation due to the claimant. 6. The learned counsel for the appellant submits that a MACA 1134/10 5 mere innocuous incorrectness in the copy, Ext.B1, has given rise to all doubts and suspicions. Actually, there is no scope for doubt or suspicion. It is not disputed that Ext.C1 is the carbon copy of the original policy issued and Ext.B2 is another photo copy of the said original policy issued. 7. All that remains to be considered is whether under Ext.B2/C1, liability in respect of the pillion rider is also covered. 8. We have no hesitation to agree that if there be any inadequacy in the policy issued whereby a genuine confusion could have in the mind of the insurer, the insurer who issued the policy must be held to be responsible. In this context and in view of the relevant entry in Exts.B2/C1, we note that in addition to the basic third party premium of Rs.160/-, a further amount of Rs.50/- had also been collected. To cover whom was that additional premium of Rs.50/- collected? If we go by Ext.B2/C1, it is collected as premium for passengers. We emphasise the plural expression used - “passengers”. The owner/rider is not specifically included in the coverage. A motor cycle is permitted to carry two persons. One can be described to be the rider and the other can be described to be the pillion rider. If you describe MACA 1134/10 6 those would travel in a motor cycle as passengers, the pillion rider must be held to be a passenger, the other being the rider himself. At any rate, if all passengers are covered under the policy of insurance, certainly both the rider and the pillion rider must be held to be covered. So reckoned, we are of the opinion that in the absence of better explanation the collection of premium of Rs.50/- in respect of the passengers must be held to cover the pillion rider at any rate. According to the appellant, rider is certainly covered but pillion rider is not. This contention is relied by the use of the plural expression “passengers” - and not the expression “rider”. 9. The learned counsel contends that 'number zero amount zero' noted under the endorsement “add PA to passengers” must suggest that the pillion rider is not covered. That means that the rider is described as a passenger. There is no separate specific entry relating to the passenger. If we were to decide the question as to who is more appropriately taken in by the expression passenger, i.e., whether rider or the pillion rider, We have no hesitation to agree that the pillion rider can more aptly be described as the passenger and not the rider. To distinguish MACA 1134/10 7 between the rider and the pillion rider, if the expression passenger were used, that expression cannot safely be held to refer to the rider who rides the vehicle. It would be more appropriate to hold that the pillion rider who just travels as a passenger with no past/role in riding the vehicle is referred to by that expression - i.e. passenger. When the plural expression 'passengers' is used, definitely the expression must cover both the rider and the pillion rider and at any rate the pillion rider. 10. The learned counsel for the appellant contends that it was only an innocuous inaccuracy in description and at any rate the pillion rider cannot be held to recover. We are unable to accept this contention. The advantage/benefit if any, we have no hesitation, will have to conceded to the insured and the injured/ victim. 11. In this view of the matter, we are not at any rate persuaded to invoke our appellate jurisdiction under Section 173 to reverse the finding of the Tribunal and to interfere with the impugned direction to the appellant to pay the amount to the claimant. Undoubtedly, the insurance company must be more careful when they issue policy documents and they will have to MACA 1134/10 8 scrupulously ensure that the insured is not misguided by any inaccurate or inadequate description in the small type written words in the policy documents. 12. In the result, this appeal is dismissed. R.BASANT, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd MACA 1134/10 9