New India Assurance Company Limited v. Vikraman, P. Ramesh Kumar, T. R. Jayakumar, Abdul Kalam and United India Insurance Company Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942** **MACA.No.2709 OF 2015(A)** **AGAINST THE AWARD IN OP(MV)No.1526/2002 DATED 20.03.2014 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM** ## **APPELLANT/3 rd RESPONDENT:** **NEW INDIA ASSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.II, K.N.MATHEW BUILDING, GANDHARI AMMANCOIL, THIRUVANANTHAPURAM, REPRESENTED BY THE MANAGER, REGIONAL OFFICE, KOCHI-682011.** ## **BY ADV. SRI.RAJAN P.KALIYATH** ## **RESPONDENTS/PETITIONER & R1,2,4 & 5:** |**1**|**VIKRAMAN,**| |---|---| ||**S/O.KRISHNAN NAIR,**| ||**VIPANCHIKA,**| ||**KAYYANIKONAM,**| ||**POWDIKONAM,**| ||**THIRUVANANTHAPURAM-695587.**| |**2**|**P.RAMESH KUMAR,**| ||**S/O.DAMODHARAN,**| ||**IX/736, POWDIKONAM,**| ||**SREEKARIYAM,**| ||**THIRUVANANTHAPURAM-695017.**| |**3**|**T.R.JAYAKUMAR,**| ||**S/O.THANKAPPAN NAIR,**| ||**SREENIVAS,**| ||**MUTTADA POST,**| ||**THIRUVANANTHAPURAM-695025.**| |**4**|**ABDULKALAM,**| ||**BISMILLAH MANZIL,**| ||**PULANTHARA,**| ||**THIRUVANANTHAPURAM-695010.**| **MACA.No.2709 OF 2015(A)** ## **:2:** **5 UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE NO.II, MALANKARA BUILDING, PALAYAM, THIRUVANANTHAPURAM-695010.** **BY ADV. SRI.V.JAYAPRADEEP BY ADV. SRI.JOHN JOSEPH VETTIKKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2709 OF 2015(A)** ## **:3:** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 12[th] day of June, 2020**_ The appellant-insurer is aggrieved by the direction to them to make payment of compensation awarded in OP(MV) No.1526/2002, of the Motor Accidents Claims Tribunal, Thiruvananthapuram. 2. The 1[st] respondent in this appeal filed the OP(MV) stating that on 18.02.2002, while the 1[st] respondent was travelling as a pillion rider on a motorcycle ridden by the 3[rd] respondent with reckless speed, the motorcycle hit the rear of an Ambassador car. The 1[st] respondent stated that the accident occurred because the driver of the car turned the vehicle backwards without showing any signal. The appellant claimed compensation for an amount of ₹3,50,000/-. ## **MACA.No.2709 OF 2015(A)** ## **:4:** 3. The 2[nd] respondent herein was the owner of the motorcycle. The 3[rd] respondent was riding the motorcycle. The 4[th] respondent was the owner of the car and the 5[th] respondent its insurer. The Tribunal, after examining the evidence, held that the accident occurred only due to the rash and negligent riding of the motorcycle by the 3[rd] respondent. The Tribunal awarded a compensation of ₹1,13,800/- with 9% interest. The appellant herein was directed to pay the compensation. 4. Aggrieved by the Award, the appellant-insurer of the motorcycle has approached this Court. The learned Standing Counsel for the appellant argued that the findings of the Tribunal on the issue of negligence is not correct and that the quantum of compensation granted is excessive. The learned Standing Counsel argued that the motorcycle was covered only by an Act only Policy and therefore there is no policy coverage as far as the pillion rider is concerned. The risk involved in respect of pillion riders is not **MACA.No.2709 OF 2015(A)** **==> picture [23 x 9] intentionally omitted <==** underwritten by the appellant. Therefore, the Tribunal ought not have directed the appellant to pay the amount to the claimant, condemning the appellant to recover the same from the owner of vehicle. 5. Heard the learned Standing Counsel for the appellant and the learned Standing Counsel for the 5[th] respondent. 6. The question whether a statutory insurance policy intended to cover risk to life or damage to properties of third parties, will cover the risk of death or injury of a gratuitous passenger carried in a private vehicle, came up for consideration before the Hon'be Apex Court in _**United India Insurance Co. Ltd. v. Tilak Singh** [2006 (2) KLT 884 (SC)]._ After considering the preceding judgments on the point, the Apex Court held that insurance company did not owe its liability towards injuries suffered by a pillion rider since the policy issued by the insurer was only a statutory policy. **MACA.No.2709 OF 2015(A)** ## **:6:** 7. The issue was again considered in _**National Insurance Co. Ltd. v. Balakrishnan**_ [2012 (4) KLT SN 145 (SC)]. The Hon'ble Apex Court held that a comprehensive/package policy would cover the liability of the insurer for payment of compensation for the occupant in a car, but the same principle may not apply in the case of Act only Policy, which admittedly cannot cover a third party risk. 8. The question as to whether in the case of injury to/death of a gratuitous passenger, whether insurance company can be directed to pay compensation and then recovery from owner, came up for consideration in _**Manuara Khatun v. Rajesh Kr. Singh** [2017 (1) KLT 2033 (SC)]_ . The Apex Court, on the facts of the case invoked the principle of Pay and Recover and directed the Insurer to make payment of compensation. 9. The question again came up before the Hon'ble Apex Court in _**Jagtar Singh @ Jagdev Singh v. Sanjeev**_ **MACA.No.2709 OF 2015(A)** **==> picture [23 x 9] intentionally omitted <==** _**Kumar and others** [(2018) 15 SCC 189]_ . The Hon'ble Apex Court held that in the case of comprehensive policy/package policy, insurer will be liable to pay compensation for the occupant in a car but there is no cavil that Act only Policy stands on a different footing. From the judgments of the Apex Court, it is clear that when the policy involved is a statutory policy, the insurer is not liable to pay compensation to gratuitous passengers in the vehicle. 10. I have considered the Award passed by the Tribunal keeping in mind the law laid down by the Apex Court. Going through the Award, I find that the Tribunal has not arrived at a specific finding as to whether the policy issued by the appellant and involved in the case is only a statutory policy or a comprehensive/package policy. The brief findings of the Tribunal in this regard are as follows:- “By producing Ext.B1, R3 contended that they are actually not liable to pay the compensation as the pillion rider has no coverage under the policy. But by relying on the dictum “all pay and recovery”, I am satisfied that the respondents are jointly and **MACA.No.2709 OF 2015(A)** **==> picture [23 x 9] intentionally omitted <==** severally liable to pay the amount with simple interest at the rate of 9% p.a. from the date of petition till realisation. Therefore the issue is answered accordingly.” This Court finds that the Tribunal could have invoked the principle of Pay and Recovery only after arriving at a conclusion as to whether the policy in question is a statutory policy or it is a comprehensive/package policy and whether the insurer has joint liability. This is because if Pay and Recovery principle is adopted, the insurer will be at a disadvantageous position to recover the compensation amount from the insured, in the absence of a specific finding. Without entering into a specific finding in that regard, it will be unjust to force the appellant-insurer to pay the compensation amount. 11. In the circumstances, I set aside the findings of the Tribunal on Issue No.3 contained in paragraph 14 of the Award and consequential direction given to the insurer based thereon. OP(MV) No.1526/2002 is hereby remitted back to the Tribunal for a fresh consideration after **MACA.No.2709 OF 2015(A)** **==> picture [23 x 9] intentionally omitted <==** appreciation of fact and the law laid down by the Apex Court as indicated hereinabove. The Tribunal will consider the aforesaid issue afresh and pass an Award, expeditiously. Sd/- **N. NAGARESH, JUDGE** aks/12/06/2020