Insurance terms govern compensation rights; a non-owner cannot claim under a personal accident cover.

1. This appeal is preferred by the claimant in O.P.(M.V.) No.879 of 2009 on the files of the Motor Accidents Claims Tribunal, Alappuzha.

2. The brief facts for disposal of the appeal are as follows:

On 15.10.2008, while the appellant / petitioner was riding a Honda Activa scooter bearing Registration No. KL - 04 - N - 9169 with one Savitha as pillion rider through National Highway at Mathilakom, a mini lorry came so close to the scooter and, in order to avoid a major accident, the petitioner swerved the scooter towards the left and thereby, the scooter skidded off, leaving the petitioner and the pillion rider to sustain serious injuries. The pillion rider succumbed to the injuries and the appellant / petitioner was taken to K.V.M. Hospital, Cherthala and from there she was taken to Lakeshore Hospital, Ernakulam and treated there as an inpatient as well as out patient. Claiming compensation for the injuries sustained in the accident, the claimant approached the tribunal. In support of her claim, the appellant / petitioner produced Exts.A1 to A12 before the tribunal. The appellant also sustained disability on account of the accident and, in order to prove the same, Ext.X1 disability certificate was also produced before the tribunal. On behalf of the respondent, Ext.B1, copy of the award in O.P(M.V.) No.1141 of 2010 preferred by the legalheirs of the pillion rider who succumbed to the injuries was produced.

3. The tribunal, on analysis of the evidence on record, found that the appellant / petitioner cannot be considered as a third party since she stepped into the shoes of the owner and thereby disentitled her to claim any compensation and dismissed the claim petition. It is aggrieved by the aforesaid finding that the appellant has approached this Court in the present appeal.

4. Heard Smt. V Shylaja, the learned counsel appearing for the appellant / petitioner and Smt. Latha Susan Cherian, the learned counsel appearing for the insurance company.

5. The learned counsel appearing for the appellant / petitioner submitted that, even going by the terms and conditions of the policy, the appellant / petitioner is entitled for compensation towards the personal accident to the extent it is covered, even if it is assumed strictly that she is not entitled for any compensation towards the permanent disability. In support of her contention, the terms and conditions of Ext.A9 policy certificate are read over.

6. On the other hand, the learned counsel for the insurance company pointed out that even going by Ext.A9 policy certificate, a compulsory personal assurance is liable to be granted to owner cum driver. In the present case, the appellant / petitioner, not being the owner, the personal accident cover under the policy will not come into operation.

7. On a consideration of the rival submissions raised across the Bar, this Court finds considerable force in the submissions of Smt. Latha Susan Cherian, the learned counsel appearing for the insurance company. No doubt, under Ext.A9, the personal accident cover is provided and an additional premium was also paid by the policyholder. Since the vehicle was driven by the appellant, who is not an owner, the aforesaid clause under the contract of insurance will not apply. It is now settled law that the courts, while considering the construction of a contract of insurance, cannot rewrite the terms and hold otherwise than what the parties intended. Since the parties have chosen to write the terms and conditions of the bargain into a concluded contract, the same will necessarily operate against the appellant.