M.A.C.A.No.1827/2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 MACA NO. 1827 OF 2010** **AGAINST THE AWARD DATED 24.02.2010 IN OPMV 1640/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,TRIVANDRUM** ## **APPELLANTS/RESPONDENTS 1 & 2:** 1 JERRY KURIAN THOMAS THEKKETHIL HOUSE, OTHERA.P.O., THIRUVALLAM. 2 JESWIN GEORGE PHILIP S/O.K.S.PHILIP, KOLLAMALA HOUSE,, PALACKAL THAKIDI, KUNNAMTHANAM, THIRUVALLA. BY ADVS. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA ## **RESPONDENTS/PETITIONERS 1 TO 3 & 3RD RESPONDENT:** 1 T.S.ALEXANDER S/O T V SIMON, HOUSE NO.20, LANDS DOWN PART,, THURUVICKAL.P.O., THIRUVANANTHAPURAM-695 031. 2 TITY ALEXANDER W/O.T.S.ALEXANDER HOUSE NO.20, LANDS DOWN PART,, THURUVICKAL.P.O., THIRUVANANTHAPURAM-695 031. 3 TIJO ALEX SIMON S/O.T.S.ALEXANDER HOUSE NO.20, LANDS DOWN PART,, THURUVICKAL.P.O., THIRUVANANTHAPURAM-695 031. 4 MS.ORIENTAL INSURANCE COMPANY LTD. DIVISIONAL OFFICE, THAKARAPARAMBU JN.,, PAZHAVANGADI, THIRUVANANTHAPURAM. BY ADVS. SRI.T.R.HARIKUMAR SRI.GEORGE CHERIAN THIRUVALLA R1 & R2 SRI.JAYAN V.EAPEN R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.03.2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.1827/2010 2 **M.R.ANITHA, J ******************** M.A.C.A.No.1827 of 2010 --------------------------------------------------Dated this the 8[th] day of April, 2022 ## **JUDGMENT** This appeal has been filed by the first and the second respondents in O.P.M.V No.1640/2002 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram (in short 'Tribunal'). The claim petition has been filed under Section 163-A of the Motor Vehicles Act, 1988 (in short 'the Act') by respondents 1 to 3, the parents and brother, out of the death of one Lijo Alex Simon, in a motor accident occurred on 14.12.2001 while the deceased was travelling on the pillion of a motorcycle bearing Reg.No.KL-03 B 9069 by hitting on a divider, resulting in fatal injuries to him. It is alleged that the accident happened due to the rash and negligent riding of the motorcycle by the second appellant. The first appellant is the owner of the motorcycle and M.A.C.A.No.1827/2010 3 third respondent is the insurer. The appellants claimed a total compensation of Rs.8,00,000/-. 2. Before the Tribunal, appellants remained ex parte. 3[rd] respondent alone contested the case. Existence of valid policy with respect to the offending vehicle is denied. But in the additional written statement, policy coverage with respect to the offending vehicle is admitted. It is contended that the pillion rider of the vehicle and the gratuitous passenger carried on the vehicle is not covered by the policy issued with respect to the vehicle. It is also contended that no additional premium has been paid or collected to cover the liability of the pillion rider and hence the insurer is not liable to indemnify the insured. 3. Exts.A1 to A11 and Ext.X1 were marked from the side of respondents 1 to 3 and Ext.B1 was marked from the side of the insurer. 4. The Tribunal, on evaluating the pleadings as well as the documents produced, found that the accident happened due to the rash and negligent driving of the motorcycle by the second M.A.C.A.No.1827/2010 4 appellant. It is further found that Ext.B1 policy is only an 'Act only Policy' and the liability of pillion rider or gratuitous passengers are not covered and hence it was found that the 4[th] respondent insurer is not liable to indemnify the insured and accordingly, the 4[th] respondent insurer was exonerated and the 1[st] appellant was held liable to pay the amount due to respondents 1 to 3. A total compensation of Rs.2,80,660/- was awarded. 5. Aggrieved by the award passed, appellants 1 and 2 approached this Court in appeal. 6. Heard learned counsel for the appellants as well as the learned counsel for the fourth respondent/insurer. Lower court records were called for and perused. 7. It has been alleged in the appeal memorandum that the policy does not exclude pillion rider of the motorcycle and hence the insurance company ought not to have exonerated. There is valid policy and it was attempted to be avoided by the insurer. It was also contended that premium was paid towards M.A.C.A.No.1827/2010 5 liability to public which includes pillion rider also and hence liability ought to have been cast upon the 4[th] respondent/insurer. 8. Learned counsel for the insurer, on the other hand, would contend that policy issued with respect to the offending vehicle is only 'Act only Policy' as proved by Ext.B1 and hence there is no liability to indemnify the insured since the pillion rider was not covered by the policy issued with respect to the offending vehicle. 9. It is not in dispute that the deceased was the pillion rider on the vehicle bearing Reg.No.KL-03 B 9069 and death also alleged to have been caused due to the rash and negligent riding of the motorcycle by the second appellant as has been found by the Tribunal. The copy of the chargesheet and other police records also produced to substantiate the factum of negligence on the part of the rider of the motorcycle which could not be controverted and it is not in dispute also. 10. So, the only question is whether pillion rider would be covered by Ext.B1 policy issued with respect to the offending M.A.C.A.No.1827/2010 6 vehicle. In this context, it is relevant to quote **Oriental Insurance Company Limited v. Sudhakaran K.V and Others : (2008) 7 SCC 428** . In that case, it has been categorically held that insurer is not liable to pay compensation in respect of pillion rider in terms of the statutory cover emanated by Section 147 when the accident has taken place due to the rash and negligent riding of the motorcycle carrying the pillion rider and pillion rider cannot be treated as a third party under Section 147 of the Act. Liability with respect to the pillion rider would be covered only in case additional cover is purchased under the contract of insurance and it is also categorically held that the legal obligation arising under Section 147 cannot be extended to an injury or death of owner of the vehicle or a pillion rider travelling thereon. 11. It is also relevant in this context to quote **New India Assurance Company Limited v. Jaisy Paul : 2021 (2) KHC 449 : 2021 ACJ 2635 : ILR 2021 (2) Ker 346** wherein the learned Single Judge of this Court held that statutory policy only covers death or bodily injury of a third party falling within the M.A.C.A.No.1827/2010 7 sweep of Section 147 of the Act. 12. In this context, it is relevant to quote **Oriental Insurance Company Ltd v. Jhuma Saha (Smt) & Ors. [(2007) 9 SCC 263]** . That appeal was directed against judgment and order of the Guahati High Court, wherein the appeal preferred by the appellant – Insurance Company was dismissed. The deceased in that case was the owner of an insured vehicle while he was driving that vehicle, in order to save a goat which was running across the road, the steering of the vehicle failed and it dashed against a tree on the road side and later he succumbed to the injuries sustained and a claim petition was filed for compensation under Section 166 of the Motor Vehicles Act, 1988. The Insurance Company raised a contention that as per the Motor Vehicles Act and Rules the owner is not entitled to get any compensation if he drives the vehicle and falls in an accident since the insurance policy is third party insurance. The Tribunal found that since the vehicle was insured and additional premium for the death of the driver or conductor has M.A.C.A.No.1827/2010 8 been paid, the liability is covered by the insurance policy. The appeal filed against it before the High Court was dismissed as not maintainable and the matter was taken up before the Apex Court and the contention raised was that in view of Section 147 of the Act the jurisdiction of the Tribunal is confined to a third party claim and hence the impugned judgment cannot be sustained. In that decision Dhanraj v. New India Assurance Co. Ltd & Anr. [(2004) 8 SCC 533] was quoted in paragraph 12, which reads as follows: "8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle. * * * 10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that M.A.C.A.No.1827/2010 9 the premium of Rs. 4989 paid under the heading "Own damage" is for covering liability towards personal injury. "Under the heading "Own damage", the words "premium on vehicle and non-electrical accessories" appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is not such insurance." 13. In that case, the finding that no additional premium was paid in respect of the entire risk of the death or bodily injury of the owner of the vehicle under Section 147(b) of the Act which specifically covers the risk of third party only was taken note of and hence appeal was allowed and the order passed by the Tribunal making the insurance company liable was set aside. 14. In **United India Insurance Co. Ltd v. Tilak Singh & Ors : (2006) 4 SCC 404,** while dealing with Section 147 of the Act and third party risk, it was held that liability of insurer to pay compensation with respect to a gratuitous passenger carried in a private vehicle, that policy under Section 147 does not cover M.A.C.A.No.1827/2010 10 such a risk. The question arose in that case was whether a statutory insurance policy under the Act, 1988 intended to cover the risk to life or damage to properties of third parties, would cover the risk of death or injury of a gratuitous passenger carried in a private vehicle. In that case it has been categorically held that unless there was a specific coverage of the risk pertaining to gratuitous passengers in the policy, the insurer was not liable. 15. In paragraph No.20 of the above decision, paragraphs 25 and 27 of the decision in **New India Assurance Co.Ltd v. Asha Rani (2003 (2) SCC 223)** , have been quoted, which read thus :- “The view expressed in Satpal Singh case however, has been specifically overruled in the subsequent judgment of a Bench of three Judges in New India Assurance Co. Ltd v. Asha Rani. In that case the discussion arose in connection with carrying passengers in a goods vehicle. This Court after referring to the terms of Section 147 of the 1988 Act, as contrasted with Section 95 of 1939 Act, held that the judgment in Satpal Sing case had been incorrectly decided and that the insurer will M.A.C.A.No.1827/2010 11 not be liable to pay compensation. In that concurring judgment of Sinha, J. after contrasting the language used in the 1939 Act with that of the 1988 Act, it has been observed (vide SCC p.235 paras 25 and 27) 25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage' **==> picture [150 x 6] intentionally omitted <==** 27. Furthermore, sub-clause (I) of clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or M.A.C.A.No.1827/2010 12 arising out of the use of the vehicle in a public place.” 16. Hence ultimately the contention of the insurance company that it owed no liability towards the injuries suffered by the gratuitous passengers as the insurance policy was a statutory policy and hence it did not cover the risk of death of or bodily injury to gratuitous passenger was upheld. Hence the Award making the insurance company liable was set aside and held that company is not liable to pay compensation awarded to the claimants. 17. In **Mini V. v. Gireeshkumar : 2016 (4) KLT 219** also, the liability of Insurance company was limited to the extent to which additional premium was collected with respect to the owner of motorcycle. 18. In the case in hand, the insurer/4[th] respondent has got a specific contention that the motorcycle involved in the accident, though covered by a policy, it was only an 'Act only Policy' and it does not cover the risk of pillion rider or gratuitous passenger. M.A.C.A.No.1827/2010 13 19. On examining Ext.B1, the certified true copy of the policy produced from the side of the insurer/4[th] respondent, it could be seen that the policy issued with respect to the motorcycle bearing Reg.No.KL-03 B 9069 is only 'Act only policy' and the premium paid is only Rs.133/-. It has been specifically provided that no own damage claim will be entertained in this policy, so also, premium paid is only under the head _'liability to public – Basic Rs.77. Add : TPPD cover for unlimited Amount Rs.50'_ . The attached policy conditions also says 'Liability only Policy'. On further examination of the policy, it is seen that there is coverage with respect to owner-driver with a rider to limit the liability in respect of the owner and driver which is specifically provided in the policy. It is also provided that the owner-driver is the registered owner who is named in the policy as the insured along with the condition that he should have an effective driving licence etc. 20. So, obviously the risk of the pillion rider is not covered by the policy. Since the policy Ext.B1 proves that it is only an M.A.C.A.No.1827/2010 14 'Act only Policy' and the risk of pillion rider is not covered and no premium is paid by the insured on that count, the insurance company is not liable to indemnify the insured. The finding of the Tribunal to exonerate the 4[th] respondent/insurer is perfectly in accordance with law and hence I do not find any merit in the present appeal filed by the appellants. In the result appeal stands dismissed. In the facts and circumstances, there is no order as to costs. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S. To Judge