Elizabath Joshi vs K.P.Joseph
2021 Latest Caselaw 14456 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
         TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                           MACA NO. 1601 OF 2010
 AGAINST THE ORDER/JUDGMENT IN OP(MV)NO. 763/2005 OF MOTOR ACCIDENTS
                        CLAIMS TRIBUNAL,PERUMBAVOOR
APPELLANT/PETITIONER:

             ELIZABATH JOSHI,
             D/O.JOSHI, KAVALAMBRAMLI HOUSE, MALAMURY, PUTHUVAZHY IS
             REP. BY HER FATHER AND NATURAL GUARDIAN JOSHI, AGED 34
             YEARS, KAVALAMBRAMLI HOUSE, PULLUVAZHY.

             BY ADVS.
             SRI.SAIGI JACOB PALATTY
             SRI.GIMMY P ANTONY


ESPONDENTS/RESPONDETS:

     1       K.P.JOSEPH,
             KAVALAMBRAMLI HOUSE, PULLUVAZHI P.O., MALAMURY-683 541.

     2       JOJO KURIAKOSE,
             KAVALAMBRAMLI HOUSE, PULLUVAZHI P.O., MALAMURY-683541.

     3       UNITED INDIA INSURANCE CO. LTD.,
             VADAKKANETHIL TOWER, PRIVATE BUS STAND ROAD, PERUMBAVOOR-
             683541.

             BY ADVS.
             SRI.S.K.AJAY KUMAR
             SRI.K.KESAVANKUTTY




     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA NO. 1601 OF 2010           2


                        JUDGMENT

The appellant was the petitioner in OP(MV) No.763

of 2005 on the file of the Motor Accidents Claims

Tribunal, Perumbavoor. The respondents in the appeal

were the respondents before the Tribunal.

2. The facts in brief in the claim petition, relevant

for the determination of the appeal, are: on 9.1.2005,

while the appellant, who was a minor child aged 3 years,

was traveling as pillion on motorcycle bearing Reg.No.KL-

17/5135 ridden by the 2nd respondent through the

Pulluvazhy-Malamury public road, due to the rash and

negligent driving of the 2nd respondent the motorcycle

slipped and the appellant's leg got entangled in the wheel.

She was treated at the Sanjoe Hospital, Perumbavoor

and, thereafter, at the Specialists Hospital, Ernakulam

from the date of accident from 10.1.2005 to 1.2.2005.

The 1st respondent was the owner of the motorcycle and

the 3rd respondent was the insurer of the vehicle. The

appellant claimed a total compensation of Rs.4,27,500/-,

which was limited to 2,50,000/-.

3. The respondents 1 and 2 did not contest the

proceedings and were set ex parte.

4. The 3rd respondent filed a written statement

refuting the allegations in the claim petition. It was

contended that the although the motorcycle had a valid

insurance policy, it was only an 'Act Policy'. The

appellant was a pillion rider, who was not covered by the

policy. Moreover, although the accident occurred on

9.1.2005 at 10.45 a.m the appellant was admitted in the

hospital only on 10.1.2005 at 9.15 p.m, i.e., after 1 ½

days. The appellant was not a pillion rider on the

motorcycle as alleged. It was with the connivance of the

police and to unlawfully enrich the appellant, the

concocted claim petition was filed through the appellant's

next friend.

5. The Tribunal, after analysing the pleadings and

materials on record, particularly, the fact that the medical

records pertaining to the treatment of the appellant were

not produced, dismissed the claim petition.

6. Aggrieved by the dismissal of the claim petition,

the petitioner is in appeal.

7. Heard, the learned counsel appearing for the

appellant/petitioner and the learned counsel appearing

for the 3rd respondent/Insurance Company.

8. The question that arises for consideration in this

appeal is whether the dismissal of the claim petition is

sustainable in law or not.

9. The learned counsel appearing for the 3 rd

respondent Insurance Company argued that though the

Tribunal has exhaustively dealt with the facts of the case

and found that the claim of the appellant was not genuine,

even otherwise the claim petition was not maintainable as

against the 3rd respondent since the insurance policy of

the motorcycle was only a Statutory/Act Policy, and no

additional premium was paid to cover the pillion rider.

Therefore, the claim petition as against the Insurance

Company is not maintainable in light of the law laid down

by this Court in New India Assurance Company Ltd.,

v. Daisy Paul and another (2021 2 KHC 449).

10. Undisputedly, the appellant was a pillion rider

on the motorcycle bearing Reg.No.KL-17/5135, which was

ridden by the 2nd respondent and owned by the 1st

respondent. The appellant has also admitted that the

insurance policy was only an Act Policy. This Court in

Daisy Paul (supra) following the ratio in New India

Assurance Company Ltd., v. Asharani and Others

(2003 KHC 22) and United India Insurance Company

Ltd., Shimla v. Tilak Singh and others (2006 KHC

605) has held that a statutory policy/ act policy only

covers death or bodily injury of a third party falling

within the sweep of the Section 147 of the Motor Vehicles

Act, 1988 and does not cover gratuitous

passengers/pillion riders.

11. Taking into account the law laid down in the

aforecited decisions and considering the fact that the

policy of the motorcycle was only act policy, I am of the

definite opinion that the appellant is not entitled to claim

compensation from the 3rd respondent.

12. In addition to the above ground, on a re-

appreciation of the entire pleadings and materials on

record, I find that the Tribunal has analysed the evidence

in a thread manner and drawn adverse inference against

the appellant for non-production of medical records. It is

hard to believe that a minor child would be taken to

hospital only on the next day after getting injured in a

serious accident. I do not find any error or impropriety in

the findings arrived at the Tribunal that the appellant has

failed to prove that the injuries sustained by her was a

result of the accident allegedly caused by the offending

vehicle. The appeal is devoid of any merits and is hence

dismissed. The parties shall bear their respective costs.

Sd/-

C.S.DIAS, JUDGE

pm