Kerala High Court
The New India Assurance Company Ltd vs Sabeena Robert on 8 July, 2025
2025:KER:49620
MACA No.3130/2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
MACA NO. 3130 OF 2014
OPMV NO.973 OF 2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
THIRUVANANTHAPURAM
APPELLANT/2ND RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LTD.
TC 42/82, GOVT. PRESS ROAD, THIRUVANANTHAPURAM,
REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD,
ERNAKULAM.
BY ADVS.
SMT.LAKSHMI V.PARAMESWARAN
SHRI.SEBASTIAN VARGHESE(K/141/2000)
RESPONDENTS/1ST CLAIMANT & 1ST RESPONDENT:
1 SABEENA ROBERT
MERCELY BHAVAN, VALLYATHOPPU, VALLAKKADAVU P.O.,
THIRUVANANTHAPURAM-695 008.
2 RAJESH.G
LUCOSE BHAVAN, T.C 34/1183, VALLYATHOPPU, VALLAKKADAVU
P.O., THIRUVANANTHAPURAM - 695 008.
BY ADV SRI.R.T.PRADEEP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 13.06.2025, THE COURT ON 08.07.2025 DELIVERED THE FOLLOWING:
2025:KER:49620
MACA No.3130/2014
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JUDGMENT
This appeal has been filed by the second respondent insurer in OP(MV) No.973 of 2003 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram, challenging the liability to pay compensation awarded to the claimant. The first respondent herein is the claimant; and the second respondent herein is the owner-cum-rider of the offending vehicle/first respondent before the tribunal.
2. Before the tribunal, the case of the claimant was that on 30.10.2002, while the deceased was pillion riding on a motorcycle bearing Reg.No.KL-01-M-2951 ridden by the first respondent in a rash and negligent manner, due to the sudden application of brakes, the motorcycle overturned, pursuant to which, the deceased was thrown on the road, whereby he sustained fatal injuries and succumbed to the injuries. The claimant, being the legal heir of the deceased, approached the tribunal claiming a total compensation of ₹5,00,000/-. The first respondent, who is the rider-cum-owner of the offending vehicle, remained ex parte before the tribunal. The second respondent insurer filed a written statement, admitting the policy coverage for the 2025:KER:49620 MACA No.3130/2014 ..3..
offending vehicle, but disputing the liability and quantum of compensation claimed. Before the tribunal, Exts.A1 to A5 were marked on the side of the claimant, and Exts.B1 & B2 on the side of the respondent insurer. The tribunal, after analysing the pleadings and materials on record, held that the accident took place on account of the negligence of the rider of the offending vehicle and awarded a sum of ₹4,16,000/- as compensation under different heads with interest @ 9% per annum from the date of petition till realization against the second respondent, being the insurer, with right of recovery against the first respondent/owner-cum-rider of the offending motorcycle. The respondent insurer has come up in appeal, challenging its liability to pay compensation.
3. Heard the learned Standing Counsel for the appellant/insurer and the learned counsel for the first respondent/claimant.
4. The learned Standing Counsel for the insurer submitted that the policy issued was 'act liability policy' and the pillion rider is not covered under the policy and hence, the insurer is not liable to indemnify the owner. To substantiate the said contention, the learned Standing Counsel for the insurer relied on a catena of decisions such as, 2025:KER:49620 MACA No.3130/2014 ..4..
United India Insurance Co. Ltd. v. Tilak Singh [2006 (2) KLT 884 (SC)], National Insurance Co. Ltd. v. Balakrishnan & Another [(2013) 1 SCC 731], National Insurance Co. Ltd. v. Parvathneni & Another [2009) 8 SCC 785], Oriental Insurance Co. Ltd. v. Sudhakaran [2008 (2) KLT 936 (SC)] and New India Assurance Co. Ltd. v. Daisy Paul & Another [2021 (2) KHC 449], and argued that since the policy is "act liability policy", there is no liability for the insurer to indemnify the insured and to pay compensation to the legal heir of the deceased.
5. Per contra, the learned counsel for the claimant/legal heir of the deceased submitted that since there was a valid policy in respect of the offending vehicle, the insurer is liable to pay compensation and then to recover the amount from the owner of the offending vehicle. To substantiate the said contention, the learned counsel relied on the judgments of the apex court in National Insurance Co. Ltd. v. Saju P. Paul & Another [2013 KHC 4013] and Manuara Khatun and others v. Rajesh Kr. Singh and others [2017 KHC 6151].
6. The question to be considered is whether any liability can be thrust upon the insurer to pay compensation to the claimant for the death of her son, who was pillion riding on a motorcycle, if the policy issued is an "act liability policy".
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7. A perusal of Ext.B1 policy shows that it is an "act liability policy". Admittedly, the deceased was a pillion rider on the offending motorcycle. It is a settled position that an "act liability policy"
does not cover a pillion rider on a vehicle, if no additional premium is paid. In Daisy Paul (supra), this Court elaborately considered the judgments of the apex court in New India Assurance Co. Ltd. v. Asha Rani [2003 KHC 22], Jagdev Singh v. Sanjeev Kumar & others [2018 KHC 7138], Tilak Singh (supra) and Saju P. Paul (supra), and found that if the policy is an "act only" policy and no additional premium is paid to cover the passengers of the vehicle, the policy will not cover the pillion rider/gratuitous passengers in the said vehicle and the insurer is not liable to pay compensation.
8. In Balu Krishna Chavan v. Reliance General Insurance Co. Ltd. [2023 KHC 5347], the apex court held and settled the legal position that if the insurer is not liable to pay compensation, then, there shall not be a direction to 'pay and recover'. It was further held that on the legal aspect, it is clear that in all cases, such order of 'pay and recover' would not arise when the insurance company is not liable but would, in the facts and circumstances, be considered by this Court to meet the ends of justice. Thus, the legal principle has been settled by the apex court that when the insurer is not liable, the order of 'pay and 2025:KER:49620 MACA No.3130/2014 ..6..
recover' does not arise. However, in Balu Krishna Chavan (supra), the apex court has directed the insurer to pay the amount and then recover the same from the insured, making it clear as follows:
"Therefore, keeping all aspects in view, and not making this case a precedent, but only to serve the ends of justice in the facts of this case..."
9. Thus, it is clear that in an "act liability policy", the insurer is liable to pay compensation only to third parties and not to gratuitous passengers in a vehicle. Therefore, the direction of the tribunal to the insurer to pay compensation to the claimant and then to recover from the owner of the offending motorcycle is legally unsustainable and is liable to be set aside.
Accordingly, the appeal is allowed. The impugned order of the tribunal, directing the insurer to pay compensation to the claimant is set aside.
SD/-
SHOBA ANNAMMA EAPEN JUDGE bka/-