MACA No.721/2021 2025:KER:28041 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE EASWARAN S. THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947 MACA NO. 721 OF 2021 AGAINST THE AWARD DATED 29.06.2020 IN OPMV NO.67 OF 2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PATHANAMTHITTA APPELLANT/ 2ND RESPONDENT IN OP(MV)N O .67/2017 : THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED ST. PETER'S JUNCTION, PATHANAMTHITTA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KANDAMKULATHY TOWER, M. G. ROAD, ERNAKULAM, COCHIN - 682016. BY ADV SEBASTIAN VARGHESE(K/141/2000) RESPONDENT/ PETITIONERS &1ST RESPONDENT IN OP(MV)N O. 67/2017 : 1 RADHA SANTHOSH AGED 43 YEARS W/O. LATE SANTHOSH G., THEKKUMKOOTTATHIL, MURUPEL VEEDU, VAZHAMUTTOM EAST P. O., VALLICODE VILLAGE, PATHANAMTHITTA, PIN - 689646. 2 SOUMYA SANTHOSH AGED 21 YEARS D/O. LATE SANTHOSH G., THEKKUMKOOTTATHIL, MURUPEL VEEDU, VAZHAMUTTOM EAST P. O., VALLICODE VILLAGE, PATHANAMTHITTA, PIN - 689646. 3 SOUMITH S. AGED 13 YEARS (MINOR), S/O. LATE SANTHOSH G., THEKKUMKOOTTATHIL, MURUPEL VEEDU, VAZHAMUTTOM EAST P. O., VALLICODE VILLAGE, PATHANAMTHITTA, PIN - 689646., REPRESENTED BY HIS MOTHER AND NEXT FRIEND RADHA SANTHOSH, AGED 43 YEARS, W/O. LATE SANTHOSH G. MACA No.721/2021 2 2025:KER:28041 4 MURALEEDHARAN S/O. ADICHAN, THEVARKUTTIYIL HOUSE, EDAMALY, PARAKARA P. O., THATTAYIL, ADOOR, PATHANAMTHITTA DISTRICT, PIN - 691525. BY ADVS. ABRAHAM SAMSON LOVELY SAMSON THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2025, THE COURT ON 03.04.2025 DELIVERED THE FOLLOWING: MACA No.721/2021 3 2025:KER:28041 EASWARAN S., J. --------------------------------------------------------- MACA No.721 OF 2021 ---------------------------------------------------------- Dated this the 3rd day of April, 2025 JUDGMENT The above appeal is at the instance of the Insurance Company, aggrieved by the award dated 29.06.2020 in OP(MV)No.67/2017 on the file of the Motor Accident Claims Tribunal-II, Pathanamthitta. 2. The brief facts necessary for the disposal of the appeal are as follows: On 13.12.2016 at about 10.40 PM, one Mr.Santhosh G. was travelling in an auto-rickshaw bearing Reg.No.KL-03M-6950 through Kalanjoor-Padom PWD road, and when the vehicle reached near Muslim Juma Masjith at Vazhappara, the driver of the auto-rickshaw immediately turned the vehicle and thus he lost control over the vehicle and struck itself on a sand rubble. As a result of the accident, the victim Santhosh sustained serious injuries and was immediately taken to Government Medical College Hospital, Kottayam and he was admitted and treated MACA No.721/2021 4 2025:KER:28041 there as an inpatient from 04.12.2016 to 17.12.2016. But he succumbed to the injuries on 17.12.2016. The legal heirs of deceased Santhosh contended that the accident was due to the sole negligence of the driver of the auto-rickshaw. According to the claimants, the deceased was working as a Coolie Worker and he was member and a loading labourer in District Head Load and Forest Workers Congress, Pathanamthitta, drawing an amount of Rs.30,000/- per month. However, the Tribunal proceeded to fix the notional income of the deceased at Rs.12,000/- per month and granted a total compensation of Rs.17,86,940/-. The appellant - Insurance Company raised a contention that the deceased was a gratuitous passenger in the alleged vehicle and therefore the Insurance Company is not liable to indemnify the owner. The Tribunal, on consideration of Ext.B1 document, i.e. the insurance policy, came to the conclusion that the deceased has to be treated as a third party in respect of the vehicle and therefore rejected the contention of the Insurance Company. It is against the aforesaid finding that the Insurance Company has preferred the present appeal. 3. Heard, Sri.Sebastian Varghese – learned counsel appearing for the appellant Insurance Company and Sri.Abraham MACA No.721/2021 5 2025:KER:28041 Samson – learned counsel appearing for the claimants. 4. The learned counsel for the appellant relied on the decision of the Hon’ble Supreme Court in Jagtar Singh Alias Jagdev Singh v Sanjeev Kumar and Others [(2018) 15 SCC 189] and the decision of a learned Single Judge of this Court in Divisional Manager, National Insurance Co.Ltd. V. Robert Dicruz and others [MACA No.1384/2011 dated 31.01.2020] and New India Assurance Company V. Daisy Paul and Another [2021 (2) KHC 449], to contend for the proposition that if the policy is only an act-only policy, the Insurance Company is not liable under the policy. The learned counsel further placed before this Court a copy of the Registration Certificate of the auto-rickshaw, which shows that it is a private auto-rickshaw and therefore it is pointed out that under no stretch of imagination, the claimants could execute the award passed against the Insurance Company. 5. On the other hand, the learned counsel appearing for the claimants submitted that the contention of the Insurance Company that the policy is only an act-only policy cannot be accepted. The arguments based on the Registration Certificate MACA No.721/2021 6 2025:KER:28041 cannot be looked into by this Court, since the Insurance Company did not produce the copy of the Registration Certificate before the Tribunal. Therefore, the learned counsel for the claimants prayed for the dismissal of the appeal. 6. I have considered the rival submissions raised across the Bar and have perused the records and also the terms and conditions of the Insurance policy. 7. Although, the law relating to the liability of an Insurance Company qua the act-only policy cannot be disputed, the fact remains that the liability of the Insurance Company would always depend upon the terms and conditions of the contract. In other words, merely because the contract of insurance is stated as a private car liability policy, the Insurance Company cannot escape the liability under the contract of insurance and the liability of the Insurance Company would always depend upon the construction of the contract. 8. On a close scrutiny of the terms and conditions of the insurance policy, this Court finds that the contract of insurance shows that it covers the basic third party cover, compulsory personal accident (PA) cover for the owner, driver and limited MACA No.721/2021 7 2025:KER:28041 liability for the paid driver. It is seen that a third party premium of Rs.2,205/- has been paid in respect of the policy. Still further, going by the terms and conditions attached to the policy, it is seen that the Insurance Company has undertaken the liability to cover the third party damages also. Clause 1 of the liability-only policy is extracted for reference hereunder: “Subject to the Limit of liability as laid down in the the Schedule hereto, the Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Vehicle anywhere in India against all sums including claimant’s costs and expenses which the insured shall become legally liable to pay in respect of: i. death of or bodily injury to any person so far as it is necessary to meet the requirements of Motor Vehicles Act. ii. damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured up to the limit specified in the Schedule.” 9. It is in the above context that this Court requires to judge the findings rendered by the Tribunal in the impugned award. It is true that the Tribunal has not discussed in detail the terms and conditions, but has concluded that as far as the deceased was concerned, he has to be construed as a third party. On a close scrutiny of the terms and conditions of the contract, this Court does not find that the findings to be vitiated in any manner. As aforesaid, the liability of the Insurance Company will always depend upon the construction of the MACA No.721/2021 8 2025:KER:28041 contract of insurance. The decision relied on by the learned counsel for the appellant could be distinguished on the facts of the present case and the construction of the terms and conditions of the contract. 10. Though the learned counsel for the appellant vehemently placed reliance on the Registration Certificate in respect of the vehicle which showed that it is a private auto- rickshaw, this Court is not in a position to appreciate the aforesaid contention, since, neither the documents were produced before the Tribunal and marked, nor the same was sought to be produced before this Court in an application under Order XLl Rule 27 of the Code of Civil Procedure, 1908. Thus this Court finds considerable force in the submissions of the learned counsel for the claimants that it is for the first time during the hearing of the appeal that the Insurance Company has produced the copy of the Registration Certificate without serving a copy on the counsel for the claimants. Thus this Court cannot appreciate the conduct of the Insurance Company in producing the Registration Certificate during the course of hearing and therefore this Court expresses its inability to look into the contents of the same. MACA No.721/2021 9 2025:KER:28041 11. As regards the construction of the Insurance contract, the law relating to the construction is well settled. On construction of a contract of insurance, if there is any ambiguity in the construction, the benefit should go to the beneficiary of the contract. The Insurance Company cannot pick and choose the words in a contract of insurance and contend that their liability is limited. 12. On a reading of the whole contract Ext.B1, this Court has no hesitation to hold that the Insurance Company has contracted itself to indemnify any claim arising out of the use of the vehicle against a third party. It is in this context that the findings of the Tribunal has to be appreciated by this Court. 13. As an upshot of this discussion, this Court finds that there is no merit in the appeal preferred by the Insurance Company and accordingly the same is liable to be dismissed. The appeal is accordingly dismissed. No order as to cost. Sd/- EASWARAN S. JUDGE ACR