MACA NO. 666 OF 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943** ## **MACA NO. 666 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 190/2002 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL, NEYYATTINKARA, THIRUVANANTHAPURAM** ## **APPELLANT/1ST RESPONDENT IN THE OPMV:** **VIJAYAKUMAR, S/O.NALINI, VIJAYABHAVANAM, PUTHENSANKEETHAM, KOVILA P.O.,, THEVALAKARA, KOLLAM DISTRICT.** **BY ADVS. SRI.B.JAYASURYA SRI.S.JIJI** ## **RESPONDENTS/APPLICANT AND RESPONDENTS 2 TO 6 IN OPMV:** - 1 **SABEER A. S/O.ABDUL JABBAR PLAVILAPUTHEN VEEDU, VAZHIMUKKU,, POOVAR ROAD, (VIA) BALARAMAPURAM,, THIRUVANANTHAPURAM DISTRICT.** - 2 **R.RATHEESH RAVEENDRAN S/O.RAVEENDRAN, "DWARAKA", PALACE ROAD, THANKASSERY, KOLLAM7.** - 3 **THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE NO.1, THAKARAPARAMBU ROAD, PAZHAVANGADI, THIRUVANANTHAPURAM-23.** - 4 **THE JOINT RECEIVER S.N.TRUST MEDICAL MISSION, S.S.M. HOSPITAL, KOLLAM.** - 5 **P.KRISHNAN KUTTY S/O.PADMANABHAN, PERUNJARACKAL, CHETTY P.O., ARTHUNGAL.** - 6 **MS.NATIONAL INSURANCE CO.LTD. THIRUVANANTHAPURAM DIVISIONAL OFFICE,, IIND FLOOR, KESAVA TOWERS, GANDHARI AMMAN, KOVIL ROAD, PULIMOODU, THIRUVANANTHAPURAM-1.** **BY ADVS. K.S.SANTHI I.J.AUGUSTINE BENOJ C AUGUSTIN GEORGE CHERIAN (SR.) P.GOPALAKRISHNAN (MVA) J.KASTHURI NAGARAJ NARAYANAN PRATHAP PILLAI A.N.RAJAN BABU RAFEEK. V.K. SAIJO HASSAN SEBIN THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON** **14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO. 666 OF 2010 **2** ## **JUDGMENT** The appellant was the 1[st] respondent in O.P.(MV) No.190/2002 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The 1[st] respondent was the claimant and respondents 2 to 6 were respondents 2 to 6 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act 1988, claiming compensation on account of the injuries he sustained in an accident on 18.12.2001. It was his case that he was pillion-rider on a motorcycle bearing registration No.KL-01-P-8255 which was ridden by the 2[nd] respondent. When the vehicle reached in front of S.N.Trust Office at Kollam, an omni bus bearing registration No.KL-2-D-1525 hit the motorcycle. The petitioner sustained injuries. MACA NO. 666 OF 2010 **3** - The motorcycle was owned by the 1[st] respondent and insured with the 3[rd] respondent. The respondents 4 to 6 were the owner, driver and insurer of the omnibus. The petitioner claimed that he was an auto electrician by profession and earning a monthly income of Rs.5,000/-. He claimed compensation from the respondents, which he quantified at Rs.6,82,500/-, but limited to Rs.6,00,000/-. 3. Respondents 1 and 2 did not contest the proceedings. The 3[rd] respondent filed written statement refuting the allegations in the claim petition. It was contended that the motorcycle was only covered by an 'Act Policy' and that the petitioner was a gratuitous passenger, hence the 3[rd] respondent was not liable to pay any amount as compensation. 4. Respondents 4 and 5 filed written statement contending that the accident occurred solely on account of the negligence on the part of the 2[nd] MACA NO. 666 OF 2010 **4** respondent, who rode the motorcycle in a rash and negligent manner. The 6[th] respondent filed a written statement the same adopting very contentions as that of the respondents 4 and 5. 5. The petitioners and a witness were examined as PWs 1 and 2 and Exts.A1 to A13 produced and marked in evidence. The insurance policy of motorcycle and the omnibus were marked as Exts.B1 and B2 through the 3[rd] respondent. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part by permitting the petitioner to realise an amount of Rs.1,66,210/- with interest @ 7.5% per annum from the date of petition till the date of realisation from respondents 1 and 2. The 1[st] respondent-the owner of the motorcycle was directed to pay the amount. 7. The Tribunal exonerated the 3[rd] respondent from paying compensation in view of the law laid down by the Honourable Supreme Court in **United** MACA NO. 666 OF 2010 **5** ## **India Insurance Company Ltd. vs. Tilak Singh** - : [2006 (2) KLT 884], that an insurer is not liable to pay compensation to a gratuitous passenger, if the vehicle is covered by an act policy. 8. Aggrieved by the impugned award, directing the 1[st] respondent to pay compensation to the petitioner, the 1[st] respondent is in appeal. 9. Heard the learned counsel appearing for the appellant- 1[st] respondent, learned counsel appearing for respondents 3 and 6-insurance company and the learned counsel appearing for the 4[th] respondent. 10. Ext.A5 charge sheet filed by the Traffic Police Kollam in crime No.658/2001 substantiates that the accident occurred solely on account of the negligence of the 2[nd] respondent, who rode the motorcycle in a negligent manner. 11. Undisputedly Ext.B1 insurance policy is only a 'Statutory/Act Policy'. 12. The law with respect to exoneration of MACA NO. 666 OF 2010 **6** liability of an insurance company in cases of compensation by gratuitous passengers/pillion riders travelling in vehicles covered by an Act Policy is well settled by the Honourable Supreme Court in **New India Assurance Company Ltd.** **vs. Asharani** : [2003 (1) KLT 165 (SC)], **United India Insurance Company Ltd. vs.Tilak Singh:** [2006 (2) KLT 884], followed by this Court in **New India Assurance Company Ltd. vs. Daizy Paul** : [ILR 2021 (2) Kerala 346]. 13. Therefore, the findings of the Tribunal, based on Ext.A5 charge sheet that it was the 2[nd] respondent who was negligent in causing the accident and that Ext.B1 is only an Act Policy, therefore, the 3[rd] respondent insurer is not liable to pay compensation, is fully justifiable and correct. 14. Nevertheless, on a closer scrutiny of Ext.B1 policy, it is seen that the policy also covers the personal accident claims for two persons on a MACA NO. 666 OF 2010 **7** motor cycle for a claim upto Rs.50,000/-. 15. The above aspect was not considered or adverted to by the Tribunal in the impugned award. 16. The learned counsel appearing for the 3[rd] respondent fairly concedes the liability of the insurance to an amount of company pay Rs.50,000/-, for personal accidents of two persons as per Ext.B1 policy. 17. As the petitioner was a pillion rider on the motorcycle and there being no other rival claim for compensation for personal accident, I am of the considered opinion that the 3[rd] respondent is liable to pay an amount of Rs.50,000/- as per the terms of Ext.B1 policy. With respect to the remaining amount of Rs.1,16,210/-, it is the liability of the 1[st] respondent-owner of the motorcycle to pay the above said amount. In the result, I allow the appeal in part by MACA NO. 666 OF 2010 **8** modifying the impugned award by directing the 3[rd] respondent to pay the petitioner/1[st] respondent an amount of Rs.50,000/- and the appellant/1[st] respondent to pay the remaining amount of Rs.1,16,210/- with interest @ 7.5% per annum from the date of petition till the date of deposit. The appellant/1[st] respondent and 3[rd] respondentinsurance company shall deposit the aforesaid amounts before the Tribunal within a period of 60 days from the date of receipt of a copy of this judgment. On such deposit being made, the Tribunal shall disburse the amount to the 1[st] respondent-claimant, in accordance with law. Sd/- ## **C.S.DIAS, JUDGE** AMV/16/07/2021