Allowed

The Oriental Insurance Co.Ltd v. v.Thilakan

Kerala HC14 Jul 2021MACA/1999/2013

Case brief

AI extract

What is this about?

The appellate court allowed the appeal filed by an insurance company against a Motor Accident Claims Tribunal award, holding that a statutory liability-only policy does not cover risks for a pillion rider.

What did the court decide?

Appeal allowed; appellant exonerated from liability to meet the award amount fixed by the Tribunal; compensation to be paid by the vehicle owner.

The Oriental Insurance Co.Ltd Vs v.Thilakan — Motor Accident Claims | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

¶4

WEDNESDAY, THE 14^TH DAY OF JULY 2021 / 23RD ASHADHA, 1943

¶5

MACA NO. 1999 OF 2013

¶6

AGAINST THE AWARD IN OPMV 349/2007 OF MOTOR ACCIDENT CLAIMS

¶7

TRIBUNAL, ALAPPUZHA

¶8

APPELLANT:2ND RESPONDENT

¶9

THE ORIENTAL INSURANCE CO.LTD

¶10

ALAPPUZHA REPRESENTED BY THE AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKUJLAM NORTH, KOCHI-18

¶11

BY ADV SRI.A.R.GEORGE

¶12

RESPONDENTS:CLAIMANT & 1ST RESPONDENT

¶13

1 V.THILAKAN S/O VASU, CHIRAYIL VEETIL, MANNANCHERRY PO., MANNANCHERRY GRAMA PANCHAYAT WARD NO.17, ALAPPUZHA DISTRICT-688538.

¶14

2 BHUVANENDRAN TJ. THEKKECHIRAYIL HOUSE, MANNANCHERRY PO., MANNANCHERRY GRAMA PANCHAYAT WARD NO.18, ALAPPUZHA DISTRICT-688538.

¶15

BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA

¶16

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.06.2021, THE COURT ON 14.07.2021 DELIVERED THE FOLLOWING:

¶17

MACA No.1999 OF 2013 2

“C.R”

A.BADHARUDEEN, J .

M.A.C.A No.1999 of 2013

¶22

--------------------------------------------- Dated this the 14^th day of July, 2021

¶23

J U D G M E N T

¶24

The 2^nd respondent/insurance company before the Tribunal, who indemni-

¶25

fied the original 1^st respondent who is the owner of the vehicle viz. scooter bearing Reg.No.KL-04/D-6454, has preferred this appeal challenging the award dated 12.01.2012 in O.P(MV) No.349 of 2007 of the Motor Accident Claims Tribunal, Alappuzha.

¶26

The respondents herein are the original petitioner as well as the 1^st

¶27

respondent.

¶28

The brief facts of the case :

¶29

The 1^st respondent/petitioner, who was aged 43 years at the time of accident, claiming to be Proprietor-cum-Worker of a mobile tea shop at Kottayam earning monthly income of Rs.5,000/- u/s 166 of the MV Act, 1988 (as amended 1994) and r/w Rule 371 of the KMV Rules 1989, had filed the original petition

¶30

for grant of compensation of Rs.1,50,000/- for the injuries sustained by him in

¶31

MACA No.1999 OF 2013 3

¶32

the Road Traffic Accident that occurred on 18.07.05 at about 6.15 a.m at the north of KPMUP School on Alappuzha-Thaneermukkom road while he was travelling as the pillion on the scooter bearing Reg.No.KL-04/D-6454 insured with second respondent owned and driven by the 1^st respondent from south to north in a rash and negligent manner taking a sudden deep turn towards left side causing the petitioner forcibly to fall down on the road.

¶33

The Tribunal adjudicated the claim based on evidence and finally granted Rs.31,350/- with interest @ 7.5% per annum, with direction to pay the same by the insurer/appellant insurer.

¶34

The specific contention raised by the appellant/insurance company is that the policy issued in relation to the vehicle bearing Reg.No.KL-04/D-6454 involved in the accident does not have valid policy to cover risk of a pillion rider. The learned counsel for the appellant/2^nd respondent zealously argued that Ext.B1 policy admittedly issued by the insurance company in favour of the owner of the vehicle is a `statutory policy' covering the risk of third parties alone. But the Tribunal negatived the contention mainly relying on the fact that Rs.16/- was collected under the head “extra loading’. The learned counsel for the appellant/insurance company submitted further that the Tribunal misunder-

¶35

MACA No.1999 OF 2013 4

¶36

stood collection of Rs.16/- under the head `extra loading’ as premium to cover risk of a pillion rider.

¶37

The learned counsel for the 2^nd respondent herein/1^st respondent in O.P(MV) as well as the 1^st respondent herein/the petitioner in O.P(MV) support-

¶38

ed the verdict of the Tribunal. However, they failed to substantiate entitlement of compensation under Ext.B1 policy.

¶39

In this context, 2 questions are, in fact, required to be answered; (i) whether liability only policy issued by the insurer would cover the risk of a pillion rider? & (ii) what is meant by `extra loading’ stated in Ext.B1 policy?

¶40

While answering the first question, I am inclined to rely on decision reported in United India Insurance Co. Ltd. v. Tilak Singh [2006 (2) KLT 884 (SC)] which was highlighted by the learned counsel for the insurance company. In this decision, the Honourable Supreme Court held that the insurance company owed no liability towards the injuries suffered by a pillion rider, as the insurance policy was a statutory one. In another decision of this Court reported in Mathew Joseph v. Janaki [2007(1) KHC 521], also it was held that gratuitous passengers in transport vehicles including a motor cycle, can have coverage only when a comprehensive policy or extended policy as might be possible to be issued, has been availed of by the owner of the vehicle. In fact, all the above deci-

¶41

MACA No.1999 OF 2013 5

¶42

sions followed the ratio of the three Bench decision reported in New India Assurance Co.Ltd. v. Asha Rani & Ors. [2003(1) KLT 165 (SC)].

¶43

In the decision reported in Francis K.T v. Sabu Augustine

¶44

and anr. [2015 (5) KHC 320] a Division Bench of this Court held that comprehensive policy only would cover the risk of a pillion rider. This legal position has been reiterated in the decision reported in Oriental Insurance Co. Ltd. v. Sudhakaran [2008 (2) KLT 936] by the Hon’ble Supreme Court.

¶45

Here, as I have already pointed out, the policy marked as Ext.B1 un-

¶46

doubtedly is a liability only policy’ otherwise known as Act only Policy’ or `statutory policy’, covering the risk of third parties alone.

¶47

Coming to the second question, in fact, collection of amount under the head “extra loading” by the insurance company while issuing policies inclusive of statutory policies, created confusion. Therefore, what is meant by `extra loading' in the insurance law is a matter which requires explanation. Loading, according to insurers, is an additional cost built into the insurance policy to cover the losses, which are higher than anticipated for the company arising from issue, ensuring a person who is prone to a formal risk. Loading as a concept, thus comes into play when an insurance company is dealt with hassled candidates and is resorted to by insurance companies in cases where the

¶48

MACA No.1999 OF 2013 6

¶49

risk to the individual is higher than the ordinary circumstances. In this connection I have perused the circular dated 22.04.2006 issued by the IRDA wherein it was stated that insurers may load' the insurers' assessment. If the experience continues to be bad, then a further loading of 100% on the expiring premium can be charged. Insurers may not load' the premium further. Going by the definition of extra loading' as explained above, Rs.16/- collected under the head extra loading' could not be held as premium collected in addition to cover the risk of third parties; viz. pillion rider and it might have been collected to compensate the extra amount paid during the previous policy. Therefore, I have no hesitation to hold that Ext.B1 policy would not cover the risk of the 1^st respondent/the petitioner in O.P(MV) and therefore the Tribunal went wrong in negativing the contentions raised by the insurance company. Therefore, the Tribunal is not justified in holding that Ext.B1 would cover the premium of pillion riders also, as Rs.16/- under the head `extra loading' was collected in addition to the premium amount for third party risk.

¶50

In a recent decision reported in New India Assurance Company Ltd. v. Daisy Paul and anr. [ILR 2021 (2) KLT Kerala 346], a single Bench of this Court after analysing various decisions on this point also expressed the same view. It has been held there in that a limited liability policy' or a statuto-

¶51

MACA No.1999 OF 2013 7

¶52

ry policy' only covers death or bodily injury of a third party falling within the purview of Section 147 of the Act. In such cases, the Insurer is not liable to compensate a `gratuitous passenger' not covered by the policy.

¶53

To sum up, I am inclined to interfere with the award under chal-

¶54

lenge.

¶55

14. In the result:

¶56

(i) This appeal is allowed and the appellant/2^nd respondent is exonerat-

¶57

ed from the liability to meet the award amount. Consequently, the amount of

¶58

compensation fixed by the Tribunal as per the award shall be paid by the owner of the vehicle, who is the 1^st respondent before the Tribunal.

¶59

(ii) The amount, if any, either deposited or paid by the appellant, shall be reimbursed to the appellant as per law. The appellant is allowed to proceed accordingly.

¶60

(iii) No order as to costs.

¶61

(A.BADHARUDEEN, JUDGE)

¶62

rtr/

The Oriental Insurance Co.Ltd v. v.Thilakan

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co.Ltd v. v.Thilakan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mamatha R Shetty Vs Abdul Nazir

Icici Lombard General Insurance Co. Lltd. Vs Aboobacker

Nalini Sasidharan @ P.T.Nalini Vs Narayana Pillai

Reliance General Insurance Company Limited Vs Jojy P. Jose

Gopalakrishnan Vs the National Insurance Company Ltd.

Vimal P.M. Vs Johny