Kerala High Court
C.M.Paulose @ Sunny vs Archana.T.A on 18 March, 2009
Bench: R.Basant, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2674 of 2008()
1. C.M.PAULOSE @ SUNNY, S/O.MATHAI,
... Petitioner
Vs
1. ARCHANA.T.A, AGED 23 YEARS,W/O.DECEASED
... Respondent
2. AVANI (MINOR)AGED 4 YEARS, D/O.DECEASED
3. K/L.RADHAMANIAMMA, AGED 68 YEARS,
4. SAJEEV KUMAR, AGED 39 YEARS,
5. THE BRANCH MANAGER, BAJAJ ALLIANZ
6. J.S.MATHAIYAN, S/O.SUBBAIYAN, AGED 48
7. M.SARASWATHI, W/O.THIRU.B.MUTHAIYAN,
8. THE NEW INDIA ASSURANCE CO.LTD,
For Petitioner :SRI.ALEXANDER JOSEPH
For Respondent :SRI.G.ANANTHANARAYANAN
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :18/03/2009
O R D E R
R.BASANT & C.T.RAVIKUMAR, JJ.
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M.A.C.A No.2674 of 2008
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Dated this the 18th day of March, 2009
JUDGMENT
BASANT, J.
Respondent/owner of the vehicle before the Tribunal is the appellant before us. A gratuitous passenger who was travelling in his vehicle succumbed to the injuries suffered in an accident on 21.09.2004. The claimants are the legal heirs/dependents of the deceased. They claimed an amount of Rs.8 lakhs as compensation. The Tribunal under the impugned award came to the conclusion that an amount of Rs.4,96,900/- along with interest is liable to be paid. However the Tribunal took the view that the insurer is not liable to pay the amount. Coverage of the vehicle under Ext.B1 policy of insurance issued by the 5th respondent herein is not disputed. However the Tribunal took the view that a gratuitous passenger in a private vehicle is not covered by the terms of the policy of insurance.
2. Ext.B1 is the policy of insurance. Admittedly it is not an "Act only" policy and is a comprehensive package policy. The terms of the policy can be deciphered from Ext.B1 produced by M.A.C.A No.2674 of 2008 2 the 5th respondent before the Tribunal. It contains a stipulation and there is no dispute on the applicability of that stipulation to the policy issued in favour of the appellant/owner of the vehicle. We extract the said condition of the policy which appears in Section 2(1) (i) of the policy (Ext.B1).
"Section II-Liability to third parties:
1. Subject to the limits of liability as laid down in the Schedule hereto, the Company, will indemnify the insured in the event of an accident caused by or arising out of the vehicle, against all sums which the insured shall become legally liable to pay in respect of:
i) death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward)..........................................................................
....................................................................................... (not extracted as it is irrelevant).
(emphasis supplied)
3. The stipulation of Section 2(1)(i) of Ext.B1 policy extracted above can leave no doubt that the policy covers the liability of the insured in respect of death or bodily injury suffered by any person including occupants carried in the vehicle provided such occupants are not carried for hire or reward. In M.A.C.A No.2674 of 2008 3 the light of that clear stipulation, in our mind no doubt whatsoever exists that the owner's liability in respect of such occupants carried in the vehicles is also covered under Ext.B1 provided such occupants are being not carried in the vehicle for hire or reward. There is no contention in this case that the decease was being carried in the appellant's vehicle for hire or reward.
4. We find that the question is already covered by an earlier decision of this Court in New India Assurance Co.Ltd. v. Hydrose & Ors. [2008(3) KLJ 9]. There also, the same policy condition came up for consideration and decision. We are not oblivious to the fact and that slightly different words are used in the policies concerned in the two cases. But the difference in language is inconsequential. Instead of stating any person "including occupants carried in the vehicle" in Ext.B1 policy, in Hydrose (supra) the expression used was "including person conveyed in or on the motor cycle". That difference in language cannot lead to any difference in the interpretation regarding liability of insurer.
5. We are satisfied, in these circumstances, that the conclusion of the Tribunal that the insurer is not liable cannot be M.A.C.A No.2674 of 2008 4 accepted. By interpretation of the terms of Ext.B1 and following the decision in Hydrose, we take the view and direct that the 5th respondent/insurer is liable to pay the amount to the claimants.
6. This appeal is accordingly allowed.
7. The learned counsel for the claimants prays that specific direction may be issued to the insurer-the 5th respondent to make the payment. Payment shall be made within a period of one month from this date.
(R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-