Manjula Chellur, Ag.C.J.

1. This appeal is by way of reference before us by order dated 24.08.2009. It reads as under:

"Respondents 1 and 2 filed claim petition under Section 163A of the Motor Vehicles Act. They claim to be the legal representatives of their son, who died in a motor accident.

2. The deceased was riding the motor cycle. The learned counsel for the appellant contends that the driver of the motor cycle was not covered by the policy. The learned counsel for the respondents 1 and 2 relied on the decision of the Division Bench of this court which is reported in New India Assurance Co. Ltd., V. Radhika (2009 (2) KLT 488). The same position has arisen for consideration in this appeal. The conditions of Policy providing for liability to third party were as follows, in the said decision:

"In terms of and subject to the limitations of the indemnify which is granted by this Section to the Insured the company will indemnify any Driver who is driving the Motor Cycle on the insured's order or with his permission provided that such Driver shall as though he were the insured observe, fulfill and be subject to the terms, exceptions and conditions of this Policy in so fa