IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 MACA.No. 1967 of 2007() ---------------------------------- OPMV.715/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): /3RD RESPONDENT: ------------------------ NATIONAL INSURANCE COMPANY LTD., REP. BY ITS MANAGER, 3RD PARTY WING,OMANA BUILDING PADMA JUNCTION, KOCHI-35. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENT(S): PETITIONER AND RESPONDENTS 1 & 2 RESPECTIVELY: ---------------------------- 1. MOIDEENKUTTY, S/O. KUTTYMOIDEEN, AGED ABOUT 44 YEARS, VALIYAPARAMBIL HOUSE, EDAYOOR P.O., POKKATIRI, MALAPPURAM DISTRICT. 2. ABU HAJI, S/O. KUTTYMOIDEEN, VALIYAPARAMBIL HOUSE, EDAYOOR P.O., POOKATIRI, MALAPPURAM DISTRICT. 3. ALAVIKUTTY, S/O. KUTTYMOIDEEN, VALIYAPARAMBIL HOUSE, EDAYOOR P.O., POOKATIRI, MALAPPURAM DISTRICT. ADV. SRI.T.K.SAIDALIKUTTY FOR R1 SRI.LAL K.JOSEPH FOR R1 SMT.SHEENA SAMUEL FOR R1 SRI.V.R.REKESH FOR R1 SRI.SUNIL NAIR PALAKKAT FOR R2 & 3 SRI.K.N.ABHILASH FOR R2 & 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIV ERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.1967 of 2007 ------------------------------------- Dated 5th December, 2008 JUDGMENT Koshy,J . This appeal is filed by the Insurance Company. First respondent sustained injuries in a motor accident due to the negligence of the driver of the vehicle insured by the appellant insurance company. Coverage of insurance policy was admitted in the written statement filed by the insurance company, but it contended that no injuries were caused so as to grant any compensation. Award was passed granting compensation of Rs.1,86,200/- out of which actual medical bills come to Rs.41,700/=. Tribunal assessed monthly income at Rs.7,000/= and calculated compensation. Income tax return was produced. The only contention raised in this appeal is that the claimant was a pillion rider of a two wheeler and, therefore, he is not covered by the insurance policy. Such a contention is not raised before the Tribunal in the pleadings or arguments. The accident occurred on 6.6.2003 and claim petition was filed on 5.11.2003. Award was passed in January, 2007. No such contention was raised during the pendency of the proceedings. Apart from admitting the policy, the policy was also not produced to show that pillion riders are not covered by the policy. Even though copy of the MACA.No.1967/2007 2 policy was produced as Annexure A1 along with an affidavit dated 29.6.2007, conditions of the policy were not produced. It is a comprehensive policy. Without seeing the conditions it cannot be stated whether pillion riders' liability was specifically included in the policy. In any event, it has been repeatedly held by the Apex Court that once coverage of insurance is admitted, it is for the insurance company to plead and prove exclusion of liability. In the absence of any pleadings, we are of the opinion that no grounds are made out to interfere with the award at the instance of the insurance company. The appeal is dismissed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks MACA.No.1967/2007 3 J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- I.A.No.2494 of 2007 in M.A.C.A.No.1967 of 2007 ------------------------------------- Dated 5th December, 2008 ORDER Koshy,J . This petition is filed to amend the written statement. The accident occurred on 6.6.2003. Claim petition was filed on 5.11.2003. The appeal was filed only on 16th July, 2007. Contentions raised in the amendment application were not raised at any time before the Tribunal. In fact, evidence was also not adduced in respect of the above contentions. We also note that even along with the appeal, conditions of policy were not produced. It is a comprehensive policy and whether liability is excluded or not, will depend upon the conditions of the policy. In the above circumstances, we are of the view that no grounds are made out to amend the written statement at this stage. This I.A. is dismissed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks