Kerala High Court
The New India Assurance Company Limited vs Premakumari T.K on 24 September, 2024
2024:KER:71102
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 24TH DAY OF SEPTEMBER 2024/2ND ASWINA, 1946
MACA NO. 44 OF 2021
AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.68 OF 2017 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI
APPELLANT:
THE NEW INDIA ASSURANCE COMPANY LIMITED,
KANDAMKULATHY TOWERS, 36/707, MAHATMA GANDHI ROAD,
OPP.MAHARAJAS COLLEGE GROUND, KOCHI POST,
KERALA - 682 011, REPRESENTED BY ITS REGIONAL MANAGER.
BY ADV JOHN JOSEPH VETTIKAD
RESPONDENTS:
1 PREMAKUMARI T.K.,
AGED 52 YEARS,
W/O.SUKUMARAN, THALAPPAKUZHIYIL HOUSE,
MANJAPATTA P.O., MANJERI, MALAPPURAM DISTRICT,
PIN - 676 123.
2 SUJIN C.,
AGED 29 YEARS,
S/O.SUKUMARAN, THALAPPAKUZHIYIL HOUSE,
MANJAPATTA P.O., MANJERI, MALAPPURAM DISTRICT,
PIN - 676 123.
3 SUJITHA C.,
AGED 27 YEARS,
D/O.SUKUMARAN, THALAPPAKUZHIYIL HOUSE,
MANJAPATTA P.O., MANJERI, MALAPPURAM DISTRICT,
PIN-676 123.
4 BAIJU,
S/O.RAJAN, VALAYATH HOUSE, MANJAPATTA P.O.,
ELANKUR, MANJERI, MALAPPURAM DISTRICT,
PIN - 676 123, (RIDER CUM REGISTERED OWNER OF
M.A.C.A.No.44 of 2021
2024:KER:71102
-2-
KL-23-F-9494 MOTORCYCLE).
5 VARGHESE,
S/O.JOHN, VADAKKEBHAGATHU MADATHIL HOUSE,
KESAVAPURAM, SVM (PO), KARUNAGAPPALLY,
KOLLAM DISTRICT, PIN-690518
(INSURER OF KL-20-F-9494 MOTORCYCLE).
BY ADVS.
SRI.P.SAMSUDIN
SRI.M.ANUROOP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 24.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.44 of 2021
2024:KER:71102
-3-
JUDGMENT
(Dated this the 24th day of September, 2024)
This is an appeal by the Insurance Company aggrieved by
the direction of the Motor Accidents Claims Tribunal, Manjery in
OP(MV) No.68 of 2017, wherein the compensation awarded under
the claim was directed to be paid by the Insurance Company and
then the right to recover from the owner was reserved. The
appellant company contends that the policy in question was only
an "Act only Policy" with only a 3 rd party coverage and therefore, it
is not liable to compensate the loss, if any, caused in the accident
to a pillion rider.
2. The facts succinctly stated are as follows: On
04.08.2015 at about 7.30 PM, one Mr.Bijin was travelling as a
pillion rider on the Motor Cycle bearing Registration No.KL-23/F-
9494, driven by the 1st respondent from Koomakulam to Elankoor
and when reached at Koomakulam, due to the rash and negligent
driving of the 1st respondent, the motorcycle hit against another
motorcycle bearing Registration No.KL-10/L-6175 and Sri.Bijin
sustained serious injuries and was taken to the Medical College
Hospital, Kozhikode and later he succumbed to the injuries on
2024:KER:71102
07.08.2015. The appellant entered appearance and contested the
claim primarily contending that the policy is only an "Act only
Policy" and therefore, there is no liability for the Insurance
Company. On behalf of claimants, Exts.A1 to A8 were marked and
on the side of appellant Exts.B1 to B3 were marked. Ext.B1 is the
certificate of policy dated 13.12.2014. The tribunal under the
impugned award though noticed that the policy was only a
"liability only policy" which would cover only the risk of 3 rd party.,
relying on the judgment of the Supreme Court in Manuara
Khatun and others v. Rajesh Kumar Singh and Others (2017
ACJ 1031), ordered the Insurance Company to pay the
compensation so awarded and recover it from the RC Owner.
3. Heard Sri. John Joseph Vettikad, the learned counsel
appearing for the appellant, and Sri.P.Samsudin, the learned
counsel appearing for the respondents 1 to 3.
4. Learned counsel appearing for the appellant pointed
out that as per the terms and conditions of Ext.B1 policy, only a
3rd party coverage was taken and that too on payment of premium
of Rs.540/-. The learned counsel further placed reliance on the
judgment of the Supreme Court in Oriental Insurance Co. Ltd. v.
Sudhakaran K. V and Others (2008 (2) KHC 697) to contend
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that the pillion rider rode a scooter could not be treated as a 3 rd
party and the liability cannot be mulcted on the shoulders of the
Insurance Company. The learned counsel further placed reliance
on the judgment rendered by this Court in Ashfad.E v. Latheef
and others in M.A.C.A. No. 2145 of 2021 (disposed by ES(J))
on 29.07.2024 in support of his contention.
5. On the other hand , Sri. P.Samsudin, the learned
counsel appearing for the claimants submitted that the award
passed by the Motor Accidents Claims Tribunal is just and proper
and that no interference is call for in exercise of the appellate
powers of this Court. He also pointed out that as per Circular No.
IRDA/NL/CIR/F&U/073/11/2009 dated 16.11.2009, the Insurance
Regulatory and Development Authority had cautioned the
Insurance Company that the company will have to indemnify the
insured in event of an accident caused by or arising out of the use
of the insured vehicle against all sums which the insured shall
become legally liable to pay. According to the learned counsel for
the claimants, while taking out the policy, it was the duty of the
Insurance Company to alert the owner with regard to the
impending perils of taking out only a basic 3 rd party cover or the
"Act only Policies". The inability of the claimants to recover the
2024:KER:71102
amount so awarded as compensation against the owners in such
cases, has been pressed into service by the learned counsel for the
claimants.
6. I have considered the rival submissions raised across
the Bar and perused the award passed by the Tribunal.
7. The question as to whether the Insurance Company
could be made liable to pay the compensation awarded by the
Motor Accidents Claims Tribunal and recover it from the owners
had been a pointed issue in various cases. On more than one
occasion, this Court was called up on to consider the question as to
whether the directions of the Supreme Court in Manuara Khatun
(Supra) would apply as a binding precedent of law under Article
141 of the Constitution of India or not, or whether the same was
rendered on the particular facts of the case by exercise of the
powers under Article 142 of the Constitution of India. After
analysing all the case laws on the point, this Court in Ashfad.E
(Supra) held that the directions of the Supreme Court in
Manuara Khatun (Supra) cannot be considered as a binding
principle under Article 141 of the Constitution of India, and had to
necessarily be confined to the facts of that particular case.
Resultantly, the directions given by the Tribunal on the facts of
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that case to pay the amounts awarded under the various heads
had to be paid by the Insurance Company and recovered from the
owner was then set aside.
8. Applying the principles laid down by this Court in
Afshad.E (Supra), I see no reason to take a different conclusion,
especially in the light of Ext.B1 policy.
As a result of the above discussion, the appellant is
entitled to succeed. Hence, the appeal is allowed. The direction
contained in the award dated 01.10.2020 passed by the Motor
Accidents Claims Tribunal, Manjeri in OP(MV) No.68 of 2017
directing the appellant to pay the amount so awarded and recover
it from the owner is thus set aside. However, this will not
preclude the claimants from recovering the amounts so ordered by
the tribunal to be recovered from the owner by appropriate
proceedings. No order as to costs.
Sd/-
EASWARAN S.
JUDGE
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