The court clarified that an 'act only' insurance policy does not cover gratuitous passengers, while enhancing compensation based on the claimant's income and suffering.

JUDGMENT :

Shoba Annamma Eapen, J.

These two appeals arise from the very same award dated 10.09.2007 in O.P.(MV) No.242 of 2004 on the file of the Motor Accidents Claims Tribunal, Pala. Hence, these appeals are heard together and are being disposed of by this judgment.

M.A.C.A.No.1658 of 2008 is filed by the appellants/claimants seeking enhancement of compensation awarded by the Tribunal as well as challenging the liability imposed on the fourth respondent to indemnify the insured, whereas M.A.C.A.No.1519 of 2008 is filed by the 3rd respondent, Insurer challenging the award on the omission of the Tribunal, permitting the insurer to recover an amount of Rs.25,000/- deposited before the Tribunal as per the interim award passed under Section 140 of The Motor Vehicles Act.

2. The brief facts of the case are as follows: On 24.10.2003 at about 09.15 p.m., while the injured was travelling in a jeep bearing registration No.KRB-3076 through Ponkunnam, due to the rash and negligent driving of the driver of the jeep who is the first respondent, the vehicle turned turtle whereby the original claimant/injured sustained serious injuries. The claimant approached the Tribunal claiming a total compensation of Rs.11,80,000/-.

3. The first, second and third respondents are the driver, owner and the insurer of the offending vehicle respectively, but later, it was found that the registered owner of the vehicle was Sri.Johnson.M.T and he was impleaded as additional fourth respondent. Though notice was served on the respondents, the first, second and fourth respondents remained absent and were set ex parte. The third respondent filed a written statement, admitting the insurance policy, denying the liability and quantum of compensation claimed. The third respondent filed an additional written statement contending that the vehicle was insured with the second respondent and the policy was an ‘act only policy’ and no additional premium was paid to cover a gratuitous passenger. Hence contended that the second respondent is not liable to compensate the claimants. Before the Tribunal, Exts.A1 to A8, Exts.B1 and B2 and Ext.X1 were marked. The Tribunal, after analysing the pleadings and materials on record, found that the accident occurred due to the negligence on the part of the first respondent and awarded a sum of Rs.4,61,520/- as compensation under different heads with interest @ 9% per annum from the date of petition till realization and proportionate costs from the fourth respondent – the owner of the offending vehicle. Dissatisfied with the quantum of compensation awarded by the Tribunal as well as exonerating the third respondent from liability to compensate the claimants, the claimants have come up in appeal and challenging the impugned award failing to direct the insurer to recover a sum of Rs.25,000/- which is deposited by the insurance company, the appellant/insurer has come up in appeal.

4. Heard the learned counsel for the claimants and the learned Standing Counsel for the respondent insurer. Since the original claimant is no more, additional claimants 2 to 6 were impleaded as the legal heirs. Adv. P.C.Haridas takes notice for additional appellants 2 to 6. During the pendency of the appeal, the original claimant passed away and the legal heirs are impleaded as the additional appellants 2 to 6.

5. The learned standing counsel appearing for the insurance company submitted that the Tribunal has found that Ext.B1 policy was an ‘act only policy,’ and hence the insurer is not liable to indemnify the insured. It is further alleged that no consequential order was passed by the Tribunal enabling the insurer to re