M/S United India Insurance Co. Ltd. v. P.V. Antony, Vijayaraghavan Nair Erikkalil, P.V. Sebyso Vargheese and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S.Dias
Judgment Date: 2022-01-20
Court Decision / Holding: The appeal is allowed. The impugned direction directing the appellant to pay compensation to the claimant is set aside. The petitioner is at liberty to proceed in accordance with law against the owner of the van. The parties shall bear their respective costs.
Final Disposition: Appeal Allowed

Parties to the Case

Appellants / Petitioners

M/S UNITED INDIA INSURANCE CO. LTD.

Respondents

P.V.ANTONY
VIJAYARAGHANSO.RAGHAVAN NAIR ERIKKALIL HOUSE,VETTUKKADU P.O.,THRISSUR
P.V.SEBYSO.VARGHESE PALAYOOR HOUSE,NELLIKUNNU,THRISSUR

Legal Representation & Advocates

Counsels for Petitioners

• Sri A.R. George

Counsels for Respondents

• Sri Sheji P.Abraham

Case Synopsis & Summary

This appeal arises from a Motor Accidents Claims Tribunal decision under Section 163A of the Motor Vehicles Act, 1988, involving an accident on 21 July 2002 in which the claimant (petitioner) sustained serious injuries while riding pillion on a motorcycle. The motorcycle, insured by the appellant insurer, was involved in a collision with a van driven by the first respondent. The Tribunal awarded partial compensation to the claimant, directing the insurer to pay Rs. 89,520 plus interest and costs. The insurer challenged this order in MACA No. 1896 of 2009, contending the vehicle was covered only by an Act Policy, which provides limited liability and does not cover pillion riders. The insurer argued it was not liable to indemnify the second respondent (the rider/owner) and that the insurer should be exonerated. The petitioner contended that the accident was caused by the van driver’s negligence and the insurer should indemnify, regardless of policy type. The High Court found that the accident was due to the van driver, and that Ext.B1 shows an Act Policy, which does not cover pillion passengers. Relying on Supreme Court and Kerala Full Bench authority, the court held that gratuitous passengers are covered only under comprehensive or package policies. Consequently, the appellate challenge succeeded and the tribunal’s direction against the insurer was set aside; liability could be pursued against the van owner, with costs awarded accordingly.

Provisions of Law Cited

Section 163A of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

A gratuitous passenger on a two-wheeler will be covered only if the policy is a comprehensive or a package policy.

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer argued that the motorcycle had only an Act Policy with limited liability and, being a pillion rider, the claimant was not covered; consequently, the insurer should not indemnify the owner of the two-wheeler and liability was to be set aside; the insurer sought exoneration and to avoid payment.

Contentions of Respondents

The petitioner argued that the insurer is liable, as the policy coverage includes the claim; the Tribunal’s order held the insurer liable; the argument centers on whether the Act Policy covers pillion passengers.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Oriental Insurance Co Ltd v. Sudhakaran K.V and others	2008 (2) KLT 936	Distinguished	The judgment notes that gratuitous passengers are covered only if the policy is comprehensive or package; the present Act Policy does not extend such coverage, distinguishing it from the cited rule.
Mathew Joseph v. Janaki	2007 (1) KLT 747 FB	Distinguished	A Full Bench decision holding the same principle; the present case distinguishes based on policy type (Act Policy) and applicability of that principle.

Extracted Judgment Text

Exact text extracted from official judgment records.

**MACA NO. 1896 OF 2009** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943** ## **MACA NO. 1896 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 2277/2002 OF the MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL** ## **APPELLANT/3rd RESPONDENT:** M/S UNITED INDIA INSURANCE CO. LTD. SIMMIS COMPLEX,KURUPPAM ROAD,THRISSUR,, REP.BY ITS ASSISTANT MANAGER,REGIONAL OFFICE,, HOSPITAL ROAD,COCHIN-682011. BY ADV SRI.A.R.GEORGE ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** 1 P.V.ANTONY, S/O.VARGHESE,PALAYOOR HOUSE, ANCHERY P.O.,THRISSUR. 2 VIJAYARAGHAVANSO.RAGHAVAN NAIR ERIKKALIL HOUSE,VETTUKKADU P.O.,THRISSUR. (DELETED FROM PARTY ARRAY AT TH RISK OF THE APPELLANT AS PER ORDER DATED 28.09.2021 IN I.A.2/2021) 3 P.V.SEBYSO.VARGHESE PALAYOOR HOUSE,NELLIKUNNU,THRISSUR. BY ADV SRI.SHEJI P.ABRAHAM THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 1896 OF 2009** **2** ## **JUDGMENT** The appellant/insurer was the 3[rd] respondent in O.P. (MV) No. 2277 of 2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. The original respondents 1 to 3 in the appeal were the petitioner and respondents 1 and 2, respectively before the Tribunal. At the instance of the appellant, the 2[nd] respondent in the appeal has been deleted. Therefore, for the sake of convenience, the parties are referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 163A of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 21.7.2002. He has averred in the claim petition that, while he was riding pillion on a motorcycle bearing Reg. No.KL9/9844 and when the motorcycle **MACA NO. 1896 OF 2009** **3** reached the Kuttanellur junction, a tempo van (van) bearing Reg. No.KL8/J 5877, driven by the 1st respondent in a rash and negligent manner, hit the motorcycle. The petitioner sustained severe injuries and was treated as an inpatient at the Jubilee Mission Hospital,Thrissur. The petitioner has contended that the accident occurred due to the negligence of the 1[st] respondent – driver of the van. The 2[nd] respondent was the owner-cum-rider of the motorcycle and the 3[rd] respondent was its insurer. Therefore, the respondents 1 to 3 were jointly and severally liable to pay compensation to the petitioner, which he quantified at Rs.3,30,000/-, but limited the claim to Rs.2,00,000/-. 3. The respondents 1 and 2 did not contest the proceeding. 4. The 3[rd] respondent had filed a written statement, inter alia, refuting the allegations in the claim petition. The 3[rd] respondent admitted that the motorcycle had a **MACA NO. 1896 OF 2009** **4** valid insurance coverage, but was covered only by an Act Policy. It was also stated that the charge laid by the Police was against the 1[st] respondent – driver of the van. In the First Information Report given by the petitioner himself, he had stated stated that the accident occurred due to the negligent driving of the van by the 1[st] respondent. No negligence was attributed against the 2[nd] respondent. Moreover, the van had no valid insurance coverage. Hence, the 3[rd] respondent prayed for complete exoneration of its liability., 5. The 3[rd] respondent-insurer also filed an additional written statement, inter alia, contending that the motorcycle was covered only by an 'Act Policy'. As the petitioner was a pillion rider on the motorcycle, he was not covered by the policy. Hence, the 3[rd] respondent was not liable to indemnify the 2[nd] respondent and pay the compensation amount. **MACA NO. 1896 OF 2009** **5** 6. The petitioner had produced and marked Exts.A1 to A13 in evidence. The 3[rd] respondent had produced the insurance policy, which was marked as Ext.B1. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to recover an amount of Rs.89,520/- with interest and cost from the 3[rd] respondent. 8. Aggrieved by the allowing of the claim petition, the 3[rd] respondent-insurer is in appeal. 9. Heard; Sri.A.R.George, the learned counsel appearing for the appellant/3rd respondent-insurer and Sri.Sheji.P.Abraham, the learned counsel appearing for the 1[st] respondent/petitioner. 10. The sole point that emerges for consideration in the appeal is whether the direction in the impugned award permitting the petitioner to recover the compensation from the 3[rd] respondent is sustainable in law or not? 11 **.** The specific case of the petitioner in the claim **MACA NO. 1896 OF 2009** **6** petition was that the accident occurred due to the negligence of the 1[st] respondent - driver of the van. In order to prove the above pleading, the petitioner produced Ext.A1 F.I.R registered by the Ollur Police in Crime No.308/2002 on the basis of his statement. Curiously, the petitioner did not produce the charge-sheet laid by the Police. 12. The 3[rd] respondent had filed a written statement also contending that the accident was caused due to the negligence of the 1[st] respondent. It was asserted that, as per the charge-sheet, it was the 1[st] respondent who was negligent in causing the accident. 13. Strangely, without any material or evidence let in to the contrary, the Tribunal arrived at a finding that the accident occurred due to the negligence of the 2[nd] respondent. Consequentially, the Tribunal, on the assumption that the motorcycle was covered by a valid policy, directed the 3[rd] respondent to pay the compensation **MACA NO. 1896 OF 2009** **7** amount. The finding of the Tribunal is patently wrong and erroneous, because it is no one's case that the accident was caused due to the negligence of the 2[nd] respondent. Moreover, on a perusal of Ext.B1 insurance policy, it is seen that it is an 'Act Policy' for which only an amount of Rs.146/- was paid as premium, to cover the liability to public and third party property risk. A pillion rider was not covered by the policy. 14. It is trite, as laid down by the Hon'ble Supreme Court in **Oriental Insurance Co Ltd. v. Sudhakaran K.V and others** [2008 (2) KLT 936] and by a Full Bench decision of this Court in **Mathew Joseph v. Janaki** [2007 (1) KLT 747 FB], that a gratuitous passenger on a two wheeler will be covered, only if the policy is a comprehensive or a package policy. 15. In the instant case, firstly, the materials on record prove that the accident was caused due to the negligence of the 1[st] respondent. Secondly, Ext.B1 substantiates that **MACA NO. 1896 OF 2009** **8** the policy is an 'Act Policy'. Therefore, the finding of the Tribunal that the appellant-3[rd] respondent/insurer is to indemnify the liability of the 2[nd] respondent is erroneous and incorrect. Hence, I set aside the same. In the result, the appeal is allowed, by setting aside the impugned direction that the petitioner is entitled to recover the compensation amount from the appellant/3rd respondent. The petitioner would be at liberty to proceed in accordance with law as against the owner of the van. In the peculiar facts and circumstances of the case, the parties shall bear their respective costs. ma/20.1.2022 Sd/- **C.S.DIAS, JUDGE**