MACA No.2970 of 2020 (C) United India Insurance Company Ltd. v. Sobhana K.C. and Krishnankutty E.K. @ Arumughan

**MACA No.2970 of 2020** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942** **MACA.No.2970 OF 2020(C)** **AGAINST THE AWARD IN OPMV 186/2019 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/2ND RESPONDENT** **UNITED INDIA INSURANCE COMPANY LTD. NOORANAL BUILDING, MYORE ROAD, SULTAN BATHERY POST AND TALUK, WAYANAD DISTRICT, KERALA PIN 673592 THE BRANCH MANAGER, REPRESENTED BY THE MANAGER, REGIONAL OFFICE, KOCHI-682 011.** **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENT/PETITIONER & R1:** **1 SOBHANA K.C AGED 46 YEARS W/O. SASI, CHEMBEKKARA HOUSE, MANKOMBU, AMBALAYAVAYAL POST, NENMENI VILLAGE, S.BATHERY TALUK, WAYANAD DISTRICT, PIN-673 593.** **2 KRISHNANKUTTY E.K. @ ARUMUGHAN, AGED 40 YEARS** **S/O. KESAVAN, EDAKKAL COLONY HOUSE, AMBALAYAL POST, NENMENI VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT-673 593.** **R1 BY ADV. SRI.P.V.BABY R1 BY ADV. SRI.A.N.SANTHOSH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA No.2970 of 2020** **2** ## **C.S.DIAS, J.** ## **====================== MACA No.2970 of 2020** ## **====================== Dated this the 16[th] day of March, 2021** ## **JUDGMENT** The 2[nd] respondent (Insurance Company) in O.P (MV) No.186/2019 on the file of the Motor Accidents Claims Tribunal, Kalpetta is the appellant in the appeal. The first respondent(claimant) was the petitioner and the second respondent (driver-cumowner) was the first respondent in the claim petition. 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 (in short ‘the Act’), inter alia, contending that on 14.11.2018 she was travelling as a pillion rider on a scooter bearing Reg.No.KL73A- 6624 ridden by the 1[st] respondent. The 1[st] respondent drove the scooter **MACA No.2970 of 2020** **3** in a rash and negligent manner and in overspeed on the Mankombu - Ambalavayal road, when the scooter reached the scene of occurence, the petitioner was thrown on the road and she sustained serious injuries. She was treated as an inpatient at the MES Hospital, Sulthan Bathery, and thereafter at the Vinayaka Hospital, Sulthan bathery. Later, she was taken to DM WIMS Hospital, Meppadi. After discharge, she also underwent Ayurvedic treatment. The accident occured due to the rash and negligent riding of the scooter by the 1[st] respondent. The 1[st] respondent is the owner and the rider of the scooter and the 2[nd] respondent is the insurer of the scooter. Hence, the petitioner is entitled to realise compensation from respondents 1 and 2, which she quantified at Rs.15,73,167/-, but limited to Rs.10,00,000/- 3. The 1[st] respondent filed a written statement admitting that the scooter was owned by him. He denied the allegation that the accident occured due **MACA No.2970 of 2020** **4** to the rashness and negligence on his part. He claimed that the accident occured due to the negligence on the part of the petitioner. The vehicle in question was insured with the 2[nd] respondent and, therefore, the 2[nd] respondent is liable to pay the compensation. 4. The 2[nd] respondent filed a written statement admitting that the scooter had a valid insurance policy. However, it was contended that the policy was an 'Act Policy' and therefore, the 2[nd] respondent was not liable to pay any amount as compensation as it was not liable to indemnify the 1[st] respondent. The 2[nd] respondent prayed that it may be exonerated from its liability and the claim petition as against the 2[nd] respondent may be dismissed. 5. Exhibits A-1 to A-16 were makred on the side of the petitioner. Exhibits B1 to B4 were marked on the side of the 2[nd] respondent. Ext.C1 medical report was marked as a Court Exhibit. ## **MACA No.2970 of 2020** **5** 6. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition by directing the 2[nd] respondent to pay the compensation amount with interest at the rate of 8% per annum from the date of petition till the date of realisation with proportionate costs to the petitioner and then recover the amount from the 1[st] respondent. 7. Aggrieved by the impugned award, the second respondent is in appeal. 8. The learned counsel appearing for the appellant argued that the Tribunal failed to take note of the fact that the vehicle in question was covered only by Ext.A15/B3, which is an 'Act Policy', which does not cover a pillion rider on a scooter. Nevertheless, the Tribunal failed to take note of the said aspect and allowed the claim petition by directing the appellant to pay the compensation and recover it from the 2[nd] respondent. He placed **MACA No.2970 of 2020** **6** reliance on the decisions of the Hon'ble Supreme Court in **New India Assurance Company Ltd vs. Asha Rani and others** [2003 (2) SCC 223], **United India Insurance Co. Ltd, Shimla vs. Tilak Singh and others [** 2006 (4) SCC 404], **United India Insurance Co. Ltd vs. M.Laxmi and others** [(2009) 17 SCC 301] **and Jagtar Singh @ Jagdev Singh vs. Sanjeev Kumar and** others [(2018 (15) SCC 189] to fortify his contentions that a pillion rider is not liable to be indemnified in an 'Act Policy'. Therefore, the Tribunal has gone wrong in directing the appellant to pay the compensation. 9. Per contra, the learned counsel appearing for the 1[st] respondent contended that the 2[nd] respondent - the owner-cum- driver of the scooter had paid an additional premium of Rs.78/- to cover the personal accident of an unnamed passenger. Therefore, the 1[st] respondent was in fact covered by the Policy. However, the Tribunal without ## **MACA No.2970 of 2020** **7** appreciating the terms and conditions of the impugned policy went on to direct that the compensation be paid by the Insurance Company and recover from the owner-cum-driver. He, hence prayed that the appeal be dismissed. 10. The fact that the accident occured on 14.11.2018 and that the petitioner was a pillion rider on the scooter bearing Reg. No.KL-73A-6624 ridden by the 1[st] respondent is not in dispute. The Tribunal, in issue No.(iv) has gone to hold that Ext.A15/Ext.B3 is only an 'Act Policy/Limited Liability Policy'. In the said circumstances, the Tribunal has held that the 1[st] respondent/petitioner was a gratuitous passenger and was not covered by the policy. It was in such circumstances that the Tribunal directed the appellant to pay the compensation and then recover the amount from the 2[nd] respondent. 11. Even the insurance was though policy produced and marked in evidence as Ext.A15/Ext.B3 , **MACA No.2970 of 2020** **8** the Tribunal has not appreciated the conditions in the policy in its proper perspective, whether additional premium was paid to cover personal accident of an unnamed passenger, and if so, what is the extent of coverage etc, that be cast on the Insurance Company. 12. It is settled law that, if additional premium is paid, the Insurance Company is liable to pay the compensation as provided under Section 147 of the Motor Vehicles Act. Nevertheless, as these aspects were not adverted to by the Tribunal in the impugned award, I am of the considered opinion that the matter requires re-consideration by the Tribunal, particularly as both sides have not addressed the Tribunal on this point. 13. Being full conscious of the mandate under O.XLI Rule 23A of the Code of Civil Procedure, I adopt the course of remand as there are valid grounds for remitting the matter back to the Tribunal. ## **MACA No.2970 of 2020** ## **9** 14. In the result, I allow the appeal in part, by setting aside the impugned award and remit the matter back to the Tribunal for fresh consideration, particularly to determine whether additional premium was paid and, if so, what is the extent of liability of the Insurance Company as per Ext.B3 insurance policy. The Tribunal shall untrammelled by any observations made in this judgment, determine the above formulated points/questions and decide the case in accordance with law. The parties are directed to appear before the Tribunal on 19.4.2021 either in person or through their learned counsel. As the original petition is of the year 2019, the Tribunal shall make every endeavour to dispose of O.P.(MV)186/2019 as expeditiously as possible. The parties shall bear their respective costs. Ma/16.3.2021 Sd/- **C.S.DIAS, JUDGE** **/True copy/**