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
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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,
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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
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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/-
