MACA 2553/2015

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 MACA NO. 2553 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OPMV 462/2005 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV/ IV ADDL. M.A.C.T., PATHANAMTHITTA APPELLANT:** **THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD. PATHANAMTHITTA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, ERNAKULAM.** **BY ADV SRI.LAL GEORGE** ## **RESPONDENTS:** **1 SUNIL S/O. RAMAN, KOCHUTHUNDU VEEDU, KONATH MURUPPEL, AICKADU, KODUMON, PATHANAMTHITTA-691555. 2 P.D. KOSHY SHALOM HOUSE, KODUMON P.O., PATHANAMTHITTA - 691 555. 3 ULLAS CHAVARUTHUNDIL VEEDU, AICKADU, KODUMON, PATHANAMTHITTA - 691 555.** **BY ADVS.** **SRI.MANOJ RAMASWAMY-R1 SMT.V.SREEJA SMT.SANJANA R.NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 2553/2015 2 ## **JUDGMENT** This appeal is preferred by the third respondent/insurer of the vehicle involved in the accident. The first respondent herein is the claimant who was a pillion rider on the scooter ridden by the third respondent and owned by the second respondent. The parties in this appeal are referred to as per the status in the claim petition. 2. The claimant has preferred O.P(MV)No.462/2005 before the Motor Accidents Claims Tribunal, Pathanamthitta under Section 166 of the Motor Vehicles Act, 1988 (M.V Act, for short) claiming compensation for the injuries he sustained in a motor vehicle accident occurred on 4.7.2004. According to the claimant, he was a pillion rider on the scooter bearing Reg.No.KL-03/E-6925 owned by first respondent and due to the negligent riding of the scooter by the second respondent, he fell down and sustained injuries. He claimed an amount of Rs.2,27,000/- as compensation. 3. The third respondent-insurance company filed a written MACA 2553/2015 3 statement admitting that the vehicle was covered by a valid insurance policy as on the date of the accident; however, the company is not liable to pay any amount as compensation as the policy is an 'act only policy' that does not require to cover a pillion rider. Exts.A1 to A8 were marked on the side of the petitioner. No documents were marked on the side of the respondents. 4. The Tribunal, by the impugned award, found that the accident occurred due to the negligent riding of the scooter by the second respondent and that, since there is a valid insurance policy in respect of the scooter and no violation of the policy condition was proved, the claimant would be entitled to recover the compensation from the respondents jointly and severally. An amount of Rs.3,36,800/- with 9% interest per annum from the date of original petition till realization with proportionate cost was awarded as compensation to the claimant. The 3[rd] respondent insurance company was directed to satisfy the award. Challenging the award, the insurance company is in appeal. 5. Heard Sri. Lal George, the learned counsel for the appellant MACA 2553/2015 4 and Sri.Manoj Ramaswamy, the learned counsel for the first respondent. 6. The contention of the appellant is that the policy issued in respect of the scooter involved in the accident is only an 'act only policy' and that does not cover the claimant who was the pillion rider. 7. An interlocutory application is filed in this appeal as I.A. No. 3116 of 2015 producing a copy of the policy pertaining to the vehicle involved in the accident as Annexure A1. The learned counsel for the appellant points out that in Annexure A1, it is stated that it is an 'act only policy'. Though an amount of Rs.140/- has been paid by the insured under the head 'personal accident to unnamed passengers', the counsel submits that a pillion rider stands outside the purview of the policy. He also submits that personal accident coverage is a separate contract and the claimant had sustained only 14% permanent disability and will not come within the ambit of section 147 of the M.V Act. Therefore, the insurance company is not liable to pay compensation for the injuries sustained by the pillion rider under an 'act only policy'. MACA 2553/2015 5 The appellant also relies on the decision of this Court in **New India Assurance Co. Ltd. v. Daisy Paul and another [2021 (2) KHC 449]** wherein this Court held that the insurance company cannot be directed to pay compensation to a gratuitous passenger in a vehicle covered by a statutory policy. 8. Though the insurance company while admitting the policy before the Tribunal has taken a contention that the company is not liable to pay any amount as compensation as the policy is an 'act only policy', the copy of the policy was not produced before the Tribunal. The copy of the policy is produced before this Court as Annexure A1 in I.A. No. 3116 of 2015. This appeal was filed on 17.08.2015 and the delay in filing the appeal was condoned on 21.01.2016. The appeal was admitted on 01.02.2016 and notice was ordered to the respondents. The execution of the impugned award was stayed by order dated 01.02.2016 in I.A. No. 3115 of 2015. On the same day, this Court also allowed I.A. No. 3116 of 2015 filed by the appellant to accept Annexure A1 copy of the policy . The owner and rider of the Scooter remained exparte before MACA 2553/2015 6 the Tribunal. Before this Court also, though they accepted notice, they have not entered appearance. 9. The claimant was not in possession of the policy of insurance and therefore, he could not produce the same before the Tribunal. The owner of the Scooter remained exparte. The insurance company did not produce the policy before the Tribunal though they took a contention in the written statement that the policy is an 'act only policy' that does not require to cover a pillion rider. The copy of the policy is produced before this Court and the same was accepted as additional evidence in the appeal. Though it is shown in the copy of the policy that it is an 'act only policy', it is seen that certain additional amounts are paid other than the third party basic premium. The details cannot be deciphered due to poor print. If the policy is an 'act only policy', then the appellant cannot be directed to satisfy the award. At the same time, if the insured has paid additional premium, the insurance company will be liable to satisfy the award to the extent covered by such additional premium as shown in the schedule of premium. Since the policy was not produced MACA 2553/2015 7 before the Tribunal by the owner of the vehicle or by the insurer, the question as to whether liability is limited by the terms of the policy could not be decided by the Tribunal. Therefore, the question as to whether the policy issued in respect of the scooter involved in the accident is an 'act only policy' and whether it covers the claimant who was the pillion rider are matters that requires to be considered by adducing evidence. The question as to who has to satisfy the award and to what extent, will also depend on the said finding. 10. Therefore, the award of the Tribunal to the extent it directs the appellant insurance company to satisfy the award is set aside and matter is remanded to the Tribunal for fresh consideration on issue No.2 with opportunity to the parties to adduce further evidence. The interim stay of execution of award granted by this Court will continue till the disposal of the Claim Petition. Since the accident occurred in the year 2004, it will be in the interest of justice if the Tribunal takes up the matter and disposes of the same not later than six months from the date of receipt of copy of this judgment. Records be sent back to the Motor MACA 2553/2015 8 Accidents Claims Tribunal, Pathanamthitta. There will be no order as to costs. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** **spc/** MACA 2553/2015 9 ## **APPENDIX** ## **APPELLANT'S ANNEXURE:** **A1:CERTIFICATE OF INSURANCE**