Kerala High Court
The New India Assurance Company vs Charley on 29 April, 2015
Author: P.N.Ravindran
Bench: P.N.Ravindran, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938
MACA.No. 701 of 2016 ()
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AGAINST THE AWARD IN OPMV 1358/2006 of MACT, MAVELIKKARA DATED
29.4.2015
APPELLANT/3RD RESPONDENT:
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THE NEW INDIA ASSURANCE COMPANY
LIMITED, KAYAMKULAM NOW REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, M.G.ROAD, KOCHI-11.
BY ADVS.SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 2:
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1. CHARLEY,
S/O.CHAUDRANGADHAN, MECHERIL HOUSE, UMBERNADU MURI,
THEKKEKARA VILLAGE, MAVELIKARA, PIN-690 107.
2. AJAYA KUMAR,
VELLAPPALLIL HOUSE, UMBERNADU MURI, THEKKEKARA VILLAGE,
MAVELIKARA, PIN-690 107.
3. CHAUDRANGADHAN,
MECHERIL HOUSE, UMBERNADU MURI, THEKKEKARA VILLAGE,
MAVELIKARA, PIN-690 107.
R2 BY ADV. SRI.VINCENT JOSEPH(B/O,NO MEMO)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 14-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.N.RAVINDRAN &
K.RAMAKRISHNAN, JJ.
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M.A.C.A. No.701 of 2016
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Dated this the 14th day of June, 2016
JUDGMENT
P.N.RAVINDRAN, J The appellant is the third respondent in O.P.(M.V.).No.1358 of 2016 on the file of the Motor Accidents Claims Tribunal, Mavelikkara. The first respondent is the claimant and respondents 2 and 3 herein are respondents 1 and 2 respectively therein. The brief facts of the case are as follows:
2. The first respondent herein instituted O.P.(M.V.)No.1358 of 2016 on 18.09.2006 claiming the sum of `3,00,000/- as compensation for the injuries sustained by him in a motor accident that took place on 17.12.2006. He contended that while he was riding pillion on the motor bike bearing Reg.No.KRY-6093, driven by the second respondent herein it capsized, as a result of the rash and negligent driving of the second respondent and in that accident, he sustained severe injuries. Though notice was served, the driver and owner of the motor bike did not enter appearance, with the result they were set exparte. The appellant/the third before the tribunal, entered appearance and filed a written statement interalia contending that under the policy of insurance issued by it, it is not liable to indemnify the insured for the reason that pillion riders are not covered by the M.A.C.A.No.701 of 2016 2 policy. It also raised various other contentions. After considering the rival contentions, the tribunal held relying on the police records that the accident took place on account of the negligence of the first respondent before the tribunal. The tribunal thereafter awarded the sum of Rs.1,03,530/- as compensation under various heads to the claimant. Though the tribunal was pleased to accept the contention of the appellant that under the policy of the insurance issued by it, a copy of which was produced and marked as Ext.B1, pillion riders are not covered, the tribunal directed the appellant to satisfy the award and thereafter recover the amount paid by it as compensation under the award from the owner of the motor bike namely the second respondent before the tribunal and the third respondent in the instant appeal. The insurer has, aggrieved thereby, filed this appeal.
3. We heard Sri. Mathews Jacob, learned senior advocate appearing for the appellant and Sri.Vincent Joseph, learned counsel appearing for the claimant/first respondent. Though respondents 2 and 3 have been served, they have not entered appearance through counsel. They are also not present in person. A reading of the impugned award discloses that the tribunal has accepted the contention of the appellant that Ext.B1 policy of insurance does not cover pillion riders. The tribunal, however, directed the appellant to M.A.C.A.No.701 of 2016 3 satisfy the award and thereafter recover the amount paid by it from the owner of the motor bike. The claimant or the owner and driver of the motor bike have not filed an appeal challenging the said direction or the finding entered by the tribunal that Ext.B1 policy is an act only policy and that it does not cover pillion riders.
4. The question whether a pillion rider on a motor bike is statutorily required to be covered was considered by the Apex Court in United India Insurance Company Ltd v. Tilak Singh [2006 (2) KLT 884(SC)]. After a survey of the relevant statutory provisions in the Motor Vehicles Act, 1939 and the Motor Vehicles Act, 1988 and the case law on the point, the Apex Court held that even under the 1939 Act, the established legal position is that unless there was a specific coverage of the risk pertaining to a gratuitous passenger in the policy, the insurer is not liable. It was held that under the 1988 Act also, a statutory policy of insurance does not cover the risk of death or bodily injury to a gratuitous passenger. The appeal filed by the insurer was allowed and the award passed by the tribunal and upheld by the High Court directing the insurer to pay compensation to a pillion rider was set aside. The very same view was reiterated by the Apex Court in Oriental Insurance Company Ltd. v. Sudhakran [2008 (2) KLT 936(SC)] wherein, after survey of the case law on the point and the M.A.C.A.No.701 of 2016 4 relevant statutory provisions, the Apex Court held as follows:
"The law which emerges from the said decisions, is:(i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under S.147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the drier of another vehicle."
5. As stated earlier, the tribunal has in the instant case entered a finding that Ext.B1 policy does not cover pillion riders. The said finding is not under challenge by the claimant or by the insured. After going through Ext.B1 policy, we are satisfied that it does not cover risk to pillion riders. In such circumstances, we are of the considered opinion that the tribunal erred in directing the appellant to pay the compensation amount awarded by it together with interest and costs and thereafter recover it from the insured. The impugned award insofar it directs the appellant to pay the compensation cannot therefore in our opinion be sustained.
We accordingly allow the appeal and set aside the award passed M.A.C.A.No.701 of 2016 5 by the Motor Accidents Claims Tribunal, Mavelikkara on 29.4.2015 in O.P.(MV)No.1385 of 2006 to the extent it directs the appellant to pay the compensation and thereafter recover it from the insured. Consequently we pass an award allowing the claimant to realize the amount awarded by the tribunal as compensation together with interest and costs from respondents 1 and 2 before the tribunal. The appellant shall stand exonerated from liability. The parties shall suffer their respective costs in this court.
Sd/-
P.N. RAVINDRAN, JUDGE.
Sd/-
K. RAMAKRISHNAN, JUDGE.
/true copy/ P.S to Judge cl