Rijesh K.F. Gothuruth v. Antony Joseph, Mary Caliste, and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941** ## **MACA.No.3214 OF 2009** **AGAINST THE AWARD IN OPMV 1394/2003 DATED 13-08-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR** ## **APPELLANT:** **RIJESH K.F. GOTHURUTH,CHENDAMANGALAM.P.O,PARAVUR TALUK,, ERNAKULAM DISTRICT.** **BY ADVS.** **SRI.G.BALAMURALEEDHARAN (PARAVUR) SRI.MATHEWS V.JACOB (PARAVUR)** ## **RESPONDENTS:** **1 ANTONY JOSEPH K S/O.JOSEPH KALATHIL,KALATHIL HOUSE,GOTHURUTH.PO,, CHENDAMANGALAM VILLAGE,PARAVUR TALUK,, ERNAKULAM DISTRICT. 2 MARY CALISTE, MANAKKAL HOUSE, GOTHURTH CHENDAMANGALAM VILLAGE,PARAVUR TALUK, ERNAKULAM DISTRICT.** **3 ORIENTAL INSURANCE CO.LTD, BRANCH OFFICE MANAPPATT BUILDINGS, NORTH NADA, KODUNGALLUR.P.O,, THRISSUR DISTRICT.** **R1 BY ADV. SRI.VPK.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.3214 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1394 of 2003 on the file of the Motor Accidents Claims Tribunal, North Paravur, which is a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained in a motor accident, which occurred on 02.11.2003, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-7/AM-7850 ridden by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. At the place of accident, the motorcycle collided with a lorry, thereby the appellant fell down and sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/-, under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte. The 3[rd] respondent insurer filed a written a statement admitting **MACA.No.3214 OF 2009** **3** the insurance coverage of the offending motorcycle. However, it was contended that, as the claimant was travelling as a pillion rider and no additional premium was paid to cover the risk of a pillion rider, the 3[rd] respondent insurer is not liable to indemnify the 2[nd] respondent insured for the compensation payable to the appellant/claimant. The age, occupation, monthly income, nature of injuries and also the quantum of compensation claimed were also disputed by the 3[rd] respondent insurer. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. Ext.B1 policy certificate was marked on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motor cycle by the 1[st] respondent rider. Following the law laid down in the decision of this Court in **Mathew Joseph v. Janaki [2007 (1) KLT 747)** , the Tribunal held that the claimant, who was travelling as a pillion rider, was **MACA.No.3214 OF 2009** **4** not covered under Ext.B1 policy, and hence the 3[rd] respondent insurer was exonerated from the liability to pay compensation to the claimant. Therefore, respondents 1 and 2 were jointly and severally held liable to pay the amount of compensation. Under various heads, the Tribunal awarded a total compensation of Rs.46,000/-, and respondents 1 and 2 were directed to satisfy the award, with interest at the rate of 7% per annum, from the date of petition till date of realisation. 5. The compensation awarded by the Tribunal under ## various heads reads thus; |ious|heads reads thus;|| |---|---|---| |Sl.<br>No.|Heads|Amount<br>allowed| |1|Pain and sufferings|12,000/-| |2|Loss of earnings|4,000/-| |3|Treatment and medical expenses|24,000/-| |4|Discomfort|6,000/-| ||Total|46,000/-| 6. The award of the Tribunal to the extent of exonerating the 3[rd] respondent insurer from the liability to pay compensation is under challenge in this appeal. ## 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 3[rd] **MACA.No.3214 OF 2009** **5** respondent/insurer. Since notice issued to the 2[nd] respondent returned with an endorsement 'refused', by the order of this Court dated 11.10.2019, service of notice on the said respondent was declared complete. 8. In the impugned award, the Tribunal, placing reliance on the judgment of a Full Bench of this Court in **Mathew Joseph's case (supra)** held that the appellant/claimant, who was travelling as a pillion rider in a motorcycle, is not covered by Ext.B1 policy and hence the 3[rd] respondent insurer is not liable to pay any amount by way of compensation. Therefore, respondents 1 and 2 were held jointly and severally liable to pay the compensation. 9. In **Mathew Jospeh's case (supra)** a Full Bench of this Court held that gratuitous passengers in transport vehicles, including a motorcycle, can have coverage only when a comprehensive policy or extended policy as might be possible to be issued has been availed by the owner of the vehicle. Only in such cases, the insurer of the vehicle is required to compensate. The guidelines set by the Apex Court are unambiguous viz., that payment of premium **MACA.No.3214 OF 2009** **6** alone can cast a corresponding duty on the insurer for rendering coverage on any such group, when they are not required to be mandatorily brought under insurance protection. 10. In **The New India Assurance Company Ltd. v. Hydrose and others [2008 (3) KLT 778]** , a Division Bench of this Court held that as held by the Constitution Bench of the Apex Court in **New India Assurance Co. Ltd. v. Jaya [(2002) 2 SCC 278]** , merely because policy is comprehensive, the liability is not absolute for the Insurance company. 'Act Only' policy covers statutory liability. In certain comprehensive policies, apart from the statutory liability, only own damages are covered. In such circumstances, gratuitous passengers are not covered. Apart from the risk compulsorily to the coverage under the Motor Vehicles Act, coverage of other risk depends upon the terms of policy like any other commercial contract. So, there should be specific coverage as held by the Apex Court in **Amrit Lal Sood v. Kaushalya Devi Thapar [(1998) 3 SCC 744]** that it is the terms of the policy that has to be **MACA.No.3214 OF 2009** **7** considered. 11. In **Hydrose's case (supra)** , the Division Bench noticed that the insurance policy in question is not an 'Act Only' policy. It is a “B” policy and Section II (1) (i) of the conditions attached to the policy shows that as per the terms and conditions of the policy, gratuitous occupants of the vehicle are covered. Clause (1) of Section II of the policy reads as follows: - “1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of accident caused by or arising out of the use of motor cycle against all sums which the insured shall become legally liable to pay in respect of: i) death or bodily injury to any person including person conveyed in or on the motor cycle provided such person is not carried for hire or reward. ii) damage to property other than property belonging to the insured or held in trust by or in the custody or control of the insured or any member of the insured's household are being conveyed by the motor cycle.” The Division Bench held that, clause (1) of Section II of the **MACA.No.3214 OF 2009** **8** policy conditions clearly states that the insurer has undertaken liability in respect of death or bodily injuries to any person including a person conveyed in or on the motorcycle provided such person is not carried for hire or reward. Here no limitation of liability is mentioned in the Schedule. In fact, specific coverage is provided for the risk of gratuitous passenger as per the conditions of policy regarding the coverage of risk due to the death or bodily injury to any person, provided, the person is not carried for hire or reward. In these circumstances, the insurer has by contract agreed to indemnify the insured of the risk of gratuitous passenger in the motorcycle. In the above circumstances, the Tribunal has correctly held that insurer is liable to pay the amount. 12. The fact that, Ext.B1 insurance policy of the offending motorcycle also contains a similar condition, whereby the 3[rd] respondent has undertaken the liability in respect of death or bodily injuries to any person including a person carried on the motorcycle, provided such person is not carried for hire or reward is not in dispute. Therefore, **MACA.No.3214 OF 2009** **9** in view of the law laid down by the Division Bench of this Court in the **Hydrose's case (supra)** , the finding of the Tribunal in the impugned award to the extent of exonerating the 3[rd] respondent insurer from the liability to pay the amount of compensation awarded to the appellant/claimant, cannot be sustained and the same is, accordingly, set aside, by holding that the 3[rd] respondent insurer is liable to pay the amount of compensation awarded to the appellant/claimant. 13. By the order dated 11.10.2019 in C.M.Application No.3825 of 2009, the delay in filing this appeal was condoned without noticing the fact that the extent of delay mentioned in that application as '27 days' was incorrect and the actual delay was '392 days'. Since the actual delay is '392 days', it is ordered that, the appellant shall not be entitled for interest for the award amount, for the period of delay of '392 days' in filing this appeal. In such circumstances, this appeal is disposed of directing the 3[rd] respondent insurer to satisfy the compensation awarded by the Tribunal in the impugned **MACA.No.3214 OF 2009** **10** award, together with interest, excluding the period of delay of '392 days' in filing this appeal, within a period of two months from the date of receipt of a certified copy of this judgment. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/28/10