National Insurance Company Ltd. v. T. Balan, V.P. Kamalakshan, and V. Haridas

1 MACA.No.274 OF 2013 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** ## **MACA.No.274 OF 2013** **AGAINST THE AWARD IN OPMV 761/2004 DATED 25-08-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANT/S:** **NATIONAL INSURANCE COMPANY LTD. PAYYANNUR NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G ROAD, KOCHI-35** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/S:** > 1. **T.BALAN, S/O.APPU, THAIPARAMBIL HOUSE THAYINERI, PAYYANNUR P.O, KANNUR – 670 308** 2. **V.P.KAMALAKSHAN, S/O.V.P.KANNAN, PUNCHAKKARA HOUSE KOKKANISSERY, PAYYANNUR P.O, KANNUR – 670 305** 3. **V.HARIDAS, S/O.M.V KUNHAPPAN, NEAR MADATHUMPADI TEMPLE, PAYYANNUR P.O, KANNUR – 670 303** **R1 BY ADV. SRI.M.V.AMARESAN R1 BY ADV. SRI.V.N.RAMESAN NAMBISAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2021, THE COURT ON 19-03-2021 DELIVERED THE FOLLOWING:** 2 MACA.No.274 OF 2013 ## **C.S.DIAS, J. ====================== MACA No.274 of 2013** ## **====================== Dated this the 19[th] day of March, 2021.** ## **JUDGMENT** The appellant was the third respondent in OP(MV) 761/2004 on the file of the Motor Accidents Claims Tribunal, Thalassery. The first respondent was the claimant and respondents 2 and 3 were the respondents 1 and 2 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 Sec.166 of the Motor Vehicles Act, 1988, inter alia, contending that on 4.9.2002 while he was riding pillion on motor cycle bearing registration No.KL-13F/5528 ridden by the second respondent, the second respondent took a rash and negligent turn on the public road near a Garment Shop at Perumba and as a result the petitioner fell down and sustained serious injuries. He was treated at the Payyannur Nursing Home as an inpatient till 21.10.2002. He had to 3 MACA.No.274 OF 2013 undergone a surgery. The accident occurred due to the rash and negligent driving on the part of the second respondent. The first respondent is the owner and the third respondent was the insurer of the motor cycle. The respondents 1 to 3 were jointly and severally liable to pay compensation to the petitioner, which he quantified at Rs.2,00,000/-. 3. The first respondent remained absent and was set ex parte. Though the second respondent entered appearance through counsel, no written statement was filed. 4. The third respondent entered appearance and filed a written statement, contending that the motor cycle was insured with the third respondent at the time of accident. The allegation that the accident was caused due to the rash and negligent riding by the second respondent was false. The second respondent rode the motor cycle in strict adherence to the traffic rules. It was only because the petitioner jumped down from the motor cycle that the accident occurred. The amounts claimed in the claim 4 MACA.No.274 OF 2013 petition are highly excessive and exorbitant. Hence, the clam petition be dismissed. 5. The petitioner and a witness was examined as PWs 1 and 2 and Exts A1 to A8 were marked through them. The third respondent produced Ext B1 - a copy of the insurance policy in evidence. Ext X1 – disability certificate - was marked as a Court Exhibit. 6. The Tribunal, after considering the pleadings and materials on record, by the impugned judgment allowed the claim petition, in part, by directing the third respondent to pay an amount of Rs.1,24,300/- to the petitioner with interest at the rate of 7.5% per annum from the date of petition till the date of realization with proportionate costs. 7. Aggrieved by the impugned judgment, the third respondent – Insurance Company – is in appeal. 8. Heard Sri.Mathews Jacob, the learned senior counsel appearing for the appellant/third respondent and Sri.Amaresan, the learned counsel appearing for the first respondent/petitioner. 9. The learned Senior Counsel appearing for the 5 MACA.No.274 OF 2013 appellant drew the attention of this Court to Sections 147 of the Motor Vehicles Act, 1988 and contended that under a ‘Limited Liability Policy, unless additional premium is paid, the Insurance Company is not liable to pay the compensation to person(s) falling outside the purview of Section 147 of the Act. According to him, in the present case, Exhibit B-1 is a ‘Limited Liability Policy’ and no additional premium was paid to cover the pillion rider on the motor cycle. Therefore, the impugned award is patently erroneous. He placed reliance on the decisions of the Honourable Supreme Court in **New India Assurance Company Ltd vs. Asha Rani and others** [2003 (2) SCC 223] and **United India Insurance Co. Ltd, Shimla vs. Tilak Singh and others [** 2006 (4) SCC 404] to fortify his contentions. He prayed that the appeal be allowed and the Insurance Company be exonerated. 10. Per contra, Sri.Amaresan, the learned counsel appearing for the first respondent contended that there is no pleadings or material on record to substantiate that Ext B1 is an 'Act Policy'. The Tribunal has correctly followed the 6 MACA.No.274 OF 2013 law and passed the impugned award, which does not warrant any interference. 11. Even though the learned senior counsel appearing for the appellant contended that an additional written statement was filed by the appellant, raising the contention that the appellant was not liable to pay any amount of compensation in view of the terms and conditions in Ext B1 policy, on a verification of the lower court records, no such additional written statement is seen filed. Similarly, on a perusal of the impugned award, as there was no such case as contended in the appeal, the Tribunal has not adverted to the above contention. 12. Sub-Sections (1) and (2) of Section 147 of the Motor Vehicles Act, 1988, reads as follows: “147. **Requirement of policies and limits of liability: -** (1) In order to comply with the requirements of this Chapter, **a policy of insurance must be a policy which** - (a) is issued by a person who is an authorised insurer, and - (b) **insures the person or classes of persons specified in the policy to the extent specified in subsection (2)** - - (i) **against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the motor vehicle or damage to any** 7 MACA.No.274 OF 2013 **property of a third party caused by or arising out of the use of the motor vehicle in a public place** ; - (ii) **against the death of or bodily injury to any passenger of a transport vehicle, except gratuitous passengers of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place** . Provided that a policy shall not be required – - (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee - (a)engaged in driving the vehicle, or (b) - (b)if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or - (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation – For the removal of doubts, it is hereby clarified that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place, notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. ## **(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:—** ## **(a) save as provided in clause (b), the amount of liability incurred;** (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier”. (emphasis given) 8 MACA.No.274 OF 2013 13. In paragraph 21 in **United India Insurance Co. Ltd, Shimla vs. Tilak Singh and others** (supra), the Honourable Supreme Court held as follows: **“ 21. In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.”** (emphasis given) 14. Similarly, In **United India Insurance Co. Ltd vs. M Laxmi and others** (supra) the Honourable Supreme Court has reiterated the position that in an ‘Act Policy’, the Insurance Company is not liable to pay any amount in the case of injuries sustained by a pillion rider. 15. In view of the above statutory provision and the categoric declaration of law by the Hon'ble Supreme Court in **Asha Rani, Tilak Singh** and **M.Laxmi** (supra), the law is well settled that in an 'Act Policy', the Insurance Company is not liable to indemnify the insured the 9 MACA.No.274 OF 2013 compensation payable to a pillion rider, unless additional premium is paid. 16. Although the learned Senior Counsel appearing for the appellant argued that the case on hand is covered by the above extracted provision and the cited decisions, I do not find any pleading or material to arrive at a conclusion that Ext B1 policy is an 'Act Policy' and no additional premium was paid to cover the pillion rider. In such circumstances, I am of the considered opinion that the matter has to be remitted back to the Tribunal for fresh consideration to decide whether the pillion rider was covered by Ext B1 policy as on the date of the accident as laid down in Sec.147 of the Act and aforecited decisions, dehors the mandate under Order 41 Rule 23A of the Code of Civil Procedure that a case shall not be remanded without cogent reasons. 17. Taking the assertion made by the learned Senior Counsel on its face value that the appellant had filed an additional written statement raising the above contention and on prima facie finding that Ext B1 policy is an 'Act Policy', on the face of it, I remit OP(MV) 761/2004 to the 10 MACA.No.274 OF 2013 Tribunal for fresh consideration. The parties are directed to appear before the Tribunal on 19.4.2021. The Tribunal shall grant leave to both parties to file additional pleadings and adduce additional evidence, if needed, and decide the case, in accordance with law. Considering the fact that the claim petition was filed in the year 2004, the Tribunal shall make every endeavour to dispose of OP (MV) 761/2004, as expeditiously as possible. The parties shall bear their respective costs. ## **Sd/-** **C.S.DIAS** SKS/19.3.2021 **JUDGE**