High Court of KeralaSingle JudgePetitions and appeals allowed; insurer exonerat...
New India Assurance Co. Ltd. v. Kishore Krishnan, Daisy Antony & Raghu C. (OP (MAC).880/2011)
Case / Petition Number:OP (MAC) No. 880 of 2011 (with related OP(MAC)872/2011; MACA270/2011; MACA271/2011)
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- A. Muhammed Mustaque
- Judgment Date
- 2019-12-16
- Court Decision / Holding
- The impugned award is modified exonerating the insurer. The driver and the owner of the vehicle are directed to pay the compensation to the claimants, thereby relieving the insurer of liability.
- Final Disposition
- Petitions and appeals allowed; insurer exonerated; common award modified to require the driver and owner to pay compensation
Parties to the Case
Appellants / Petitioners
- New India Assurance Co. Ltd.
Respondents
- Kishore Krishnan
- Daisy Antony
- Raghu C
- Geetha Krishnan
- P. Krishnankutty
- Greeshma Krishnan
Legal Representation & Advocates
Counsels for Petitioners
- • M. Jacob Murikan
Counsels for Respondents
- • Philip T. Varghese
- • Thomas Kachiramattom
Case Synopsis & Summary
These petitions and appeals arise from a common award dated 04.10.2010 passed by the Motor Accidents Claims Tribunal, Kottayam, which fastened liability on the insurer New India Assurance Co. Ltd. for compensation to four passengers in a car involved in the accident. The insurer contends that the passengers were gratuitous and not covered by the policy, which was a 'Liability Only' (Act-only) policy, and thus the insurer should not be liable. The Tribunal had held that the four petitioners were passengers in a private car and were covered under the policy, despite the policy’s restrictions, and the insurer amended its plea to stress lack of coverage for gratuitous passengers. The respondents (claimants) relied on the policy’s broad protection and on Tribunal reasoning that the passengers were entitled to compensation. The High Court, citing Supreme Court precedents, notably Asha Rani and United India Insurance Co. v. Tilak Singh, analysed the scope of policy coverage for gratuitous passengers. It ultimately held that under a statutory policy, gratuitous passengers were not covered; applying Tilak Singh, the insurer’s liability could not be fastened. Consequently, the impugned award was modified: the driver and owner were directed to pay compensation, exonerating the insurer.
Provisions of Law Cited
Section 173 of the Motor Vehicles Act, 1988
Legal Doctrines & Maxims
- Gratuitous passenger doctrine under statutory policy (Tilak Singh) – insurer not liable
- Asha Rani principle: observations regarding gratuitous passengers apply to other vehicles
- Insurance is a contract; liability arises only if the policy covers the risk
Submissions & Arguments
Contentions of Appellants / Petitioners
The insurer contends that the four petitioners were gratuitous passengers in a private car insured by a 'Liability Only' policy (Act-only). Such passengers are not covered by the policy, and no premium is charged for gratuitous passengers; The insurer invokes the policy terms and supporting judgments (Tilak Singh) to argue no liability. It argues the Tribunal erred in treating gratuitous passengers as covered, and cites lack of controlling High Court/Apex Court decisions to the contrary.
Contentions of Respondents
The claimants contend the passengers were covered by the policy as part of the vehicle’s risk protection; the Tribunal found the passengers were gratuitous but within the policy’s reach, and that the insurer should indemnify the liability. They rely on policy terms and applicable judgments to argue compensation is payable by the insurer.
Cited Precedents (2)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| United India Insurance Co. Ltd. v. Tilak Singh | 2006 (2) KLT 884 (SC) | Positive | Supreme Court held that, in context of gratuitous passengers under a statutory policy, the insurer may have no liability; the High Court applies this principle to exonerate the insurer. |
| Asha Rani case | 2003 (1) KLT 165; (2003) 2 SCC 223 | Positive | Observations in Asha Rani were stated to apply with equal force to gratuitous passengers in any vehicle, supporting the reasoning that gratuitous passengers are not necessarily covered under the policy. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE**
# **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941**
# **OP (MAC).No.880 OF 2011(Y)**
**AGAINST THE COMMON AWARD DATED 4.10.2010 IN OP(MV)NOS.1284, 1285, 1288 AND 1297/2005 OF M.A.C.T., KOTTAYAM**
## **PETITIONER:**
**NEW INDIA ASSURANCE CO. LTD., REPRESENTED BY THE DULY AUTHORISED SIGNATORY,, (R.SUKUMANAN NAIR, MANAGER), REGIONAL OFFICE, KANDOMKULATHY TOWERS, M.G.ROAD, KOCHI - 682 011.**
**BY ADV. SRI.M.JACOB MURIKAN**
## **RESPONDENTS:**
|**1**|**KISHORE KRISHNAN,**|
|---|---|
||**NADUVILASSERY HOUSE,**|
||**SANTHIPURAM P.O., NEDUNGADAPALLY,**|
||**CHANGANACHERRY – 686 545.**|
|**2**|**DAISY ANTONY,**|
||**PALAKUNNEL, ANU VILLA, MAMMUDU P.O.,**|
||**(VIA) KARUKACHAL, PIN- 686 553.**|
|**3**|**RAGHU.C. CHERUPURAYIDAM HOUSE,**|
||**MAMMUDU P.O., CHANGANACHERRY,**|
||**PIN-686 553.**|
**THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 16.12.2019, ALONG WITH OP (MAC).872/2011(O), MACA.270/2011, MACA.271/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**OP (MAC).No.880 OF 2011 & Con.Cases**
**-2-**
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941**
# **OP (MAC).No.872 OF 2011**
**AGAINST THE COMMON AWARD DATED 4.10.2010 IN OP(MV)NOS.1284, 1285, 1288 AND 1297/2005 OF M.A.C.T., KOTTAYAM**
## **PETITIONER:**
**THE NEW INDIA ASSURANCE CO.LTD., REPRESENTED BY THE DULY AUTHORISED SIGNATORY, (R.SUKUMANAN NAIR, MANAGER), REGIONAL OFFICE, KANDOMKULATHY TOWERS, M.G.ROAD, KOCHI-682 011.**
**BY ADV. SRI.M.JACOB MURIKAN**
## **RESPONDENTS:**
|**1**|**P.KRISHNANKUTTY,**|
|---|---|
||**NADUVILASSERY HOUSE,**|
||**SANTHIPURAM P.O., NEDUNGADAPALLY,**|
||**CHANGANACHERRY-686 545.**|
|**2**|**DAISY ANTONY, PALAKUNNEL,**|
||**ANU VILLA, MAMMUDU P.O.,**|
||**(VIA) KARUKACHAL,, PIN-686 553.**|
|**3**|**RAGHU C, CHERUPURAYIDAM HOUSE,**|
||**MAMMUDU P.O., CHANGANACHERRY,**|
||**PIN-686 553.**|
**THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 16.12.2019, ALONG WITH OP (MAC).880/2011(Y), MACA.270/2011, MACA.271/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**OP (MAC).No.880 OF 2011 & Con.Cases**
**-3-**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941**
## **MACA.No.270 OF 2011**
**UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE AWARD DATED 4.10.2010 IN OP(MV) NO.1288 OF 2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM**
## **APPELLANT/3RD RESPONDENT IN O.P.(MV):**
**NEW INDIA ASSURANCE CO. LTD. REPRESENTED BY THE DULY AUTHORISED SIGNATORY, (R.SUKUMARAN NAIR, MANAGER), REGIONAL OFFICE, KANDOMKULATHY TOWERS, M.G.ROAD, KOCHI-682 011.**
**BY ADV. SRI.M.JACOB MURIKAN**
**RESPONDENTS/ PETITIONER & RESPONDENTS 1 & 2 IN O.P.(MV):**
**1 GEETHA KRISHNAN, NADUVILASSERY HOUSE, SANTHIPURAM P.O., NEDUNGADAPALLY, CHANGANACHERRY, PIN - 686 545.**
**2 DAISY ANTONY, PALAKUNNEL, ANU VILLA, MAMMUDU P.O., (VIA) KARUKACHAL, PIN - 686 553.**
**3 RAGHU C. CHERUPURAYIDAM HOUSE, MAMMUDU P.O., CHANGANACHERRY, PIN - 686 553.**
**R1 BY ADV. SRI.PHILIP T.VARGHESE R1 BY ADV. SRI.THOMAS KACHIRAMATTOM**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2019, ALONG WITH OP (MAC).872/2011(O), OP (MAC).880/2011(Y), MACA.271/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **OP (MAC).No.880 OF 2011 & Con.Cases**
**-4-**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941**
## **MACA.No.271 OF 2011**
**UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE AWARD DATED 4.10.2010 IN OP(MV) NO.1297 OF 2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM**
## **APPELLANT/3RD RESPONDENT IN OP(MV):**
**NEW INDIA ASSURANCE CO. LTD. REPRESENTED BY THE DULY AUTHORISED SIGNATORY, (R.SUKUMARAN NAIR, MANAGER), REGIONAL OFFICE, KANDOMKULATHY TOWERS, M.G.ROAD, KOCHI-682 011.**
**BY ADV. SRI.M.JACOB MURIKAN**
## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 IN OP(MV):**
**1 GREESHMA KRISHNAN, NADUVILASSERY HOUSE, SANTHIPURAM P.O., NEDUNGADAPALLY, CHANGANACHERRY, PIN-686 545. 2 DAISY ANTONY, PALAKUNNEL, ANU VILLA, MAMMUDU P.O., (VIA) KARUKACHAL, PIN-686 553. 3 RAGHU C, CHERUPURAYIDAM HOUSE, MAMMUDU P.O., CHANGANACHERRY, PIN-686 553. R1 BY ADV. SRI.PHILIP T.VARGHESE R1 BY ADV. SRI.THOMAS KACHIRAMATTOM**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2019, ALONG WITH OP (MAC).872/2011(O), OP (MAC).880/2011(Y), MACA.270/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**OP (MAC).No.880 OF 2011 & Con.Cases**
**-5-**
## **JUDGMENT**
**[ OP (MAC).880/2011, OP (MAC).872/2011, MACA.270/2011, MACA.271/2011 ]**
**Dated this the 16th day of December 2019**
These original petitions as well as appeals are filed by the Insurer aggrieved by a common award dated 04.10.2010 passed in OP(MV)Nos.1284, 1285, 1288 and 1297 of 2005 on the files of the Motor Accidents Claims Tribunal, Kottayam, fastened liability on the Insurer.
2. The issue is only in regard to the coverage of passengers who were traveling in a car. The car involved in an accident. The Insurer's case is that the passengers are gratuitous passengers and they are not covered by policy. The Tribunal while considering the issue answered as follows:
_“12. Issue No.2: It is the admitted case of the 3[rd] respondent that the offending vehicle was insured and the policy was valid and effective on the date of accident. Ext.B1 is a copy of the policy issued in the name of 1[st] respondent. In Ext.B1 it is seen stated that the vehicle is a private car and the policy was 'Liability Only Policy'. The 3[rd] respondent would contend that the petitioners are gratuitous passengers in a private car issued with 'Liability Only Policy' and they are not entitled to get compensation from the 3[rd] respondent. Such a contention is untenable in law. All the four petitioners are_
**OP (MAC).No.880 OF 2011 & Con.Cases**
**-6-**
_passengers in a private vehicle owned by the 1[st] respondent, who is not a relative or friend to have the vehicle be used gratuitously. The 3[rd] respondent has not cited any decision of the Honourable High Court or of the Apex Court to escape liability. In my view, the risk of the petitioners is effectively covered by Ext.B1 policy, and the 3[rd] respondent is liable to indemnify the liability of the insured.”_
The Tribunal finding is that all the four petitioners are passengers in a private car is not relative or friend of a person who driven the vehicle or own the vehicle and since no decision of High Court or Apex Court was cited by the Insurer, the Insurer is liable to pay the compensation.
3. It is to be noted that a specific contention has been raised by the Insurer in the written statement by way of an amendment which reads thus:
_“The policy issued with respect to the above said vehicle is 'Act only'(Act liability only) policy and no premium is paid by first respondent for a gratuitous passenger in the vehicle. The petitioner in this Case is a gratuitous passenger in the above said vehicle. Therefore, the third respondent has no liability to indemnify the insured in this case”_
## 4. The apex Court in **United India Insurance Co.Ltd.**
## **v. Tilak Singh [2006 (2) KLT 884 (SC)]** held as follows:
_“Although the observations made in Asha Rani case, 2003(1)KLT 165=(2003)2 SCC 223, were in connection with carrying passengers in a goods vehicle, the same would apply_
**OP (MAC).No.880 OF 2011 & Con.Cases**
**-7-**
_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.”_
5. The insurance is a contract unless such persons are covered by policy the Insurer cannot be fastened on any liability as the policy is not extended to cover such persons.
In the light of the Apex Court judgment as well these original petitions as well as appeals are to be allowed exonerating the Insurer. Therefore, the impugned award is modified directing the driver and the owner of the vehicle jointly pay the compensation to the claimants.
## **Sd/-**
## **A.MUHAMED MUSTAQUE**
## **JUDGE**
**akv**
**OP (MAC).No.880 OF 2011 & Con.Cases**
**-8-**
## **APPENDIX OF OP(MAC)NO.880/2011**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1**
**TRUE COPY OF THE COMMON AWARD IN O.P. (MV)NOS.1284,1285,1288 AND 1297 OF 2005 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM DATED 4.10.2010.**
**RESPONDENT'S/S EXHIBITS : NIL.**
//TRUE COPY//
C.A. TO JUDGE
**OP (MAC).No.880 OF 2011 & Con.Cases**
**-9-**
## **APPENDIX OF OP(MAC)NO.872/2011**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1**
**TRUE COPY OF THE COMMON AWARD IN O.P. (MV)NOS.1284,1285,1288 AND 1297 OF 2005 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM DATED 4.10.2010.**
**RESPONDENT'S/S EXHIBITS : NIL.**
//TRUE COPY//
C.A. TO JUDGE