High Court of KeralaDivision Bench2017-11-30Appeal allowed; award reversed; insurer liable ...

Arun J. Thurackal v. Ibrahim Sulaiman, Navas M.I. and The Branch Manager, National Insurance Co. Ltd.

Case / Petition Number:MACA.No.666 of 2016

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.K. Abdul Rehim
K.P. Jyothindr anath
Judgment Date: 2017-11-30
Court Decision / Holding: Appeal allowed. The impugned award is reversed to the extent it exonerated the 3rd respondent insurer from liability; the 3rd respondent insurance company is held liable to pay the amount of compensation awarded along with interest and costs as ordered by the Tribunal. The appellant is entitled to the refund of the statutory deposit.
Final Disposition: Appeal allowed; award reversed; insurer liable to pay compensation along with interest and costs; statutory deposit refundable to appellant.

Parties to the Case

Appellants / Petitioners

Arun J. Thurackal S/o James

Respondents

Ibrahim S/o Sulaiman
Navas M.I S/o Jabbar
The Branch Manager National Insurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. George Varghese (PerumpallikuttIyil)
• Sri. A.R. Dileep
• Sri. Manu Sebastian
• Sri. P.J. Joe Paul

Counsels for Respondents

• Sri. Ranjit Babu
• Sri. K.B. Arunkumar
• Sri. C. Joseph Antony
• Sri. George Cherian (Sr.)
• Sri. K.S. Santhi
• Sri. Latha Susan Cherian
• Sri. M.A. George

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA No. 666 of 2016) from the Kerala High Court, heard by a Division Bench on 30 November 2017. The appellant, Arun J. Thurackal, challenged an MACT Thodupuzha award (OPMV No. 548/2012, dated 26 August 2015) that exonerated the 3rd respondent, the National Insurance Co. Ltd., from liability and held the 2nd respondent’s lorry owner liable to pay compensation to the claimant, a passenger injured when the lorry overturned. The Tribunal found negligence on the part of the driver (2nd respondent), but treated the claimant as a gratuitous passenger; consequently, insurer liability was negated. The appellant contended that the claimant was, in fact, the owner or representative of timber as goods transported in the lorry; Ext. A1 (FIR) and Ext. B1 (policy) supported coverage under Section 147 of the Motor Vehicles Act. The High Court relied on decisions interpreting Section 147 to mean that the owner of goods or his representative need not accompany the goods at the time of accident, and that a passenger may be covered when transporting goods. It affirmed that the insurer is liable to compensate, reversing the MACT award, and also allowed the appellant refund of any statutory deposit.

Provisions of Law Cited

Section 147 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal’s exoneration of the 3rd respondent insurer is vitiated because the claimant was the owner/representative of timber goods carried in the lorry, with Ext. A1 indicating timber trade activity and Ext. B1 the insurance policy covering such liability. Citing Section 147 of the Motor Vehicles Act, the appellant argues that the owner/representative qualifies for statutory coverage even when not accompanying the goods at the accident. He relies on Kerala decisions United India Insurance Co. Ltd. v. Suresh K.K. (2006 (4) KLT 333) and United India Insurance Co. Ltd. v. Velayudhan (2010 (4) KLT 834), and notes that the Supreme Court later overruled Suresh K.K. on other points in United India Insurance Co. Ltd. v. Suresh K.K. and another (2008 (4) KLT 552). The appellant asserts the liability should be shifted to the insurer with interest and costs, and seeks refund of the statutory deposit.

Contentions of Respondents

The respondents argue that the claimant did not establish ownership of the goods or his status as a representative, and the lorry at the time of the accident was not carrying goods, justifying the MACT’s exoneration of the insurer. They contend Section 147’s amended language requires the owner/rep to accompany the goods, and cite Suresh K.K.’s interpretation as superseded by the Supreme Court’s 2008 decision. They rely on the insurer’s lack of liability given no goods were loaded, emphasizing the gratuitous passenger denial and the need to follow binding precedents; they urge upholding the Tribunal’s findings and the non-liability of the insurer, while opposing refunds beyond the Tribunal’s order.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
United India Insurance Co. Ltd. v. Suresh K.K. and another	2006 (4) KLT 333	Positive	The Division Bench held that the amended Section 147 does not require the owner/representative to accompany the goods; the owner or representative may travel with the goods in the hired vehicle and still be covered.
United India Insurance Co. Ltd. v. Velayudhan	2010 4 KLT 834	Positive	Followed the view that the owner or authorized representative need not accompany the goods to be covered under Section 147.
United India Insurance Co. Ltd. v. Suresh K.K. and another	2008 4 KLT 552	Overruled	Supreme Court overruled Suresh K.K. on points other than the one discussed here; the court notes the dissent not on the discussed point.
United India Insurance Co. Ltd. v. Suresh K.K. and another	2008 4 KLT 552	Positive	The decision is cited as the controlling Supreme Court ruling that overruled Suresh K.K. on other aspects; it informs the current interpretation that Suresh K.K. is not binding on the point addressed here.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 30TH DAY OF NOVEMBER 2017 / 9TH AGRAHAYANA, 1939** **MACA.No. 666 of 2016** **AGAINST THE AWARD IN OPMV 548/2012 of MACT,THODUPUZHA DATED 26-08-2015** ## **APPELLANT/2ND RESPONDENT** **ARUN J.THURACKAL S/O.JAMES, THURACKL HOUSE, MUTHALAKODAM PO, THODUPUZHA** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** **SRI.A.R.DILEEP** **SRI.MANU SEBASTIAN SRI.P.J.JOE PAUL** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 3:** **1. IBRAHIM S/O SULAIMAN, POONAMMICKAL HOUSE, MUTHALAKODAM, THODUPUZHA 685605** **2. NAVAS M.I S/O.JABBAR, MARAVEETICKAL HOUSE, EZHUMUTTOM VILLAGE, THODUPUZHA 685605** **3. THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., PULIMOOTTIL SHOPPING ARCADE, THODUPUZHA 685585** **R1 BY ADV. SRI.RANJIT BABU R1 BY ADV. SRI.K.B.ARUNKUMAR R2 BY ADV. SRI.C.JOSEPH ANTONY R3 BY ADV. SRI.GEORGE CHERIAN (SR.) R3 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.LATHA SUSAN CHERIAN R BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.No.666 OF 2016** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of November, 2017 ## **JUDGMENT** ## Abdul Rehim, J. The 2[nd] respondent in O.P.(MV)No.548/2012 on the files of the Motor Accidents Claims Tribunal, Thodupuzha is the appellant herein, challenging the award to the extent the Tribunal exonerated the 3[rd] respondent company from the liability for payment of the amount of compensation awarded. 2. The appellant is the registered owner of the lorry involved in the accident. The 1[st] respondent herein, who was a passenger in the lorry sustained injuries when the lorry overturned after hitting on a retaining wall. The 1[st] respondent/claimant was travelling in the cabin of the lorry at the relevant time of the accident. The Tribunal found that the 1[st] respondent had established negligence on the part of the driver of the lorry ( the 2[nd] respondent herein), in causing the accident. The claimant adduced evidence before the Tribunal as PW1 that he was a timber merchant and he was travelling in the lorry back to MACA No.666/2016 2 Thodupuzha from Perumbavoor, after sale of the timber carried in the lorry. But the Tribunal observed that, the claimant had not produced any proof like trip sheet or bills to prove that he had transported timber in the lorry to Perumbavoor. Accepting the contention raised by the insurance company that the injured was a gratuitous passenger travelling in the cabin, it was held that, the policy does not cover the liability to pay compensation to him. Therefore it was observed that the insurance company has no liability to pay compensation with respect to the injury sustained to the claimant, as per the terms of Ext.B1 policy. Consequently the Tribunal held that the appellant herein is liable to pay the amount of compensation fixed. The appellant is challenging the above said finding contending that the liability of the insurance company stands covered by virtue of the statutory provisions contained in Section 147 of the Motor Vehicles Act. 3. Heard counsel for the appellant and standing counsel appearing for the 3[rd] respondent insurance company. 4. Contention of learned counsel appearing for the MACA No.666/2016 3 appellant is that, the injured/claimant was successful in proving before the Tribunal that, he was travelling in the cabin of the lorry in the capacity as the owner of the goods ( timber) which was carried from Thodupuzha to Perumbavoor and sold at Perumbavoor. Learned counsel had drawn our attention to Ext.A1 FIR, which contained the statement given by the claimant before the Police on the date of the accident itself. The statement was given by him at Vazhakulam police station on his way from Nirmala Medical Centre Hospital, Muvattupuzha to the Holy Family Hospital, Muthalakkodam, Thodupuzha for continued treatment. On a perusal of the said statement it is revealed that, the injured/claimant had stated before the Police that, he was occupied as a timber merchant and he used to take Rubber trees for sale at Perumbavoor. It is categorically mentioned that, on the previous day also he had a load of timber ( Rubber trees) which was taken during night to Perumbavoor and that the accident occurred while he was returning in the same lorry from Perumbavoor to Thodupuzha. Having the first version given to the Police immediately after the accident, the MACA No.666/2016 4 above said statement need to be considered with more credence and probative value. Therefore we are inclined to hold that the claimant was travelling in the lorry after sale of the timber at Perumbavoor in the capacity as owner of the goods. The oral evidence adduced in this regard was not seen rebutted successfully. 5. A contention raised by the standing counsel appearing for the 3[rd] respondent is that, the claimant cannot be considered as the owner of the goods or his representative, because at the time of the accident the vehicle in question was not carrying any goods. But learned counsel appearing for the appellant had pointed out two decisions of this honourable court. In **United India Insurance Co. Ltd. Suresh K.K. And another ( 2006 (4) KLT 333)** , a Division Bench of this court, referring to the provisions contained in Section 147 of the Motor Vehicles Act held that, the language of the amended provision does not show that the owner or the representative must accompany the goods in order to come within the purview of that clause. It is rather common that the owner of the goods of his representative who hires the vehicle travels in the hired MACA No.666/2016 5 vehicle from the place of hiring to the place where the goods are to be loaded into the vehicle and then proceeds to travel along with the goods. It is also common that, after unloading the goods such passengers travel in the same vehicle to the place from where they commenced the journey. The passenger does so and is allowed to do so in his capacity as the owner of the goods or his representative who has hired the vehicle for transporting goods. The amended provision makes it explicitly clear that the word 'carried' qualifies the owner of goods or his representative and not the goods carried; is the finding. 6. The above view of the Division Bench was followed in another case decided by a learned Judge of this Court in **United India Insurance Co. Ltd. v. Velayudhan (2010 4 KLT 834)** . It is held therein that, the owner or the authorised representative need not invariably be shown to accompany the goods, at the time of accident causing injury to or resulting in the death of the passenger, who is either the owner of the goods or the authorized representative of the owner of the goods. A person continues to be owner of goods or MACA No.666/2016 6 representative of owner of goods even while returning after unloading of goods. 7. We take note of the fact that, even though the decision in Suresh's case (supra) was overruled by the honourble supreme court in **United India Insurance Co. Ltd. v. Suresh K.K. and another (2008 4 KLT 552)** on other points, the dissentment expressed by the apex court was not on the point discussed above. 8. Considering the dictum mentioned as above, we are inclined to hold that, the claimant in the case was the owner of the goods travelling in the cabin of the lorry, coming within the purview of the statutory coverage provided under Section 147 of the Motor Vehicles Act. 9. Under the above mentioned circumstances, we are inclined to allow the appeal by reversing the finding to the extent it exonerated the 3[rd] respondent – insurance company from the liability. 10. In the result, the above appeal is hereby allowed. The impugned award is reversed to the extent it held the appellant liable MACA No.666/2016 7 to pay the amount of compensation. It is held that the 3[rd] respondent insurance company is liable to pay the amount of compensation awarded along with the interest and cost as ordered by the Tribunal. The appellant will be entitled to get refund of the statutory deposit made, for which the Tribunal shall pass appropriate orders. **C.K.ABDUL REHIM, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv.