Ginumon T.R. v John Pothen John, Raju T.T., The New India Assurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 26TH DAY OF SEPTEMBER 2017/4TH ASWINA, 1939** **MACA.No. 23 of 2011 ( ) -----------------------AGAINST THE AWARD IN OPMV 1090/2008 of M.A.C.T.,KOTTAYAM DATED 29-10-2010** **APPELLANT(S)/PETITIONER:** **-----------------------** **GINUMON.T.R,THANNICKAL KIZHAKETHIL, AANIKUNNU,KARINILAM.P.O,VIA MUNDAKAYAM.** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS KACHIRAMATTOM** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. JOHN POTHEN JOHN,H.NO.1/962,BISS VILLA, KOZHAVARKAL,MUTTADA.P.O,THIRUVANANTHAPURAM-695 025.** **2. RAJU.T.T,FORMERLY THAZHAKASSERIL, PUNCHAVAYAL.P.O,MUNDAKAYAM NOW DO.HOUSE,** **MANARCADU.P.O,KOTTAYAM-686 019.** **3. THE NEW INDIA ASSURANCE CO.LTD, KOTTAYAM-686 001.** **R,R1 BY ADV. SRI.G.KRISHNAKUMAR R,R1 BY ADV. SMT.M.P.RETHNAM R,R3 BY ADV. SRI.K.C.SANTHOSHKUMAR R,R1 BY ADV. SRI.TITTO THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2017 ALONG WITH MACA NO.102/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D.RAJAN, J.** ---------------------------------M.A.C.A.Nos.23/2011 & 102/2011 ---------------------------------Dated this the 26[th] day of September, 2017 ## **JUDGMENT** These appeals are preferred against the award in O.P.(MV) Nos.1090/2008 and 1089/2008 of Motor Accidents Claims Tribunal, Kottayam (for short MACT) by the injured. The appellants sustained injuries in a motor accident on 5.2.2008 at about 10 p.m, while they were travelling in a pick up van KL-1/W 4116 as the owners of the goods carried in the vehicle. The tribunal awarded a sum of 12,218/- with₹ interest and costs in O.P.(MV)No.1090/2008 and 8000/-₹ with interest and costs in O.P.(MV)No.1089/2008. Being dissatisfied with the award amount, they approached this Court with these appeals. 2. The appellants' case in the tribunal was that on the date of accident, they were travelling in a goods vehicle (KL 1/W 4116 ) with jack fruits after sale, when they reached Muttam, due to the rash and negligent driving of M.A.C.A.No.23/2011 & con.case 2 the 2[nd] respondent, the vehicle went out of the road and hit against an electric post, as a result, they sustained serious injuries. Immediately, they were removed to Chazhikkadu Hospital, Thodupuzha, thereafter referred to Medical College Hospital, Kolencherry. The driver and the owner of the vehicle were set ex parte. The insurer in the written statement contended that the injured were gratuitous passengers in a goods vehicle and no premium was collected for gratuitous passengers, hence they are not liable to indemnify the injured. To substantiate the above contention, the petitioner in O.P.(MV)No.1090/2008 was examined as PW1 and his documents were marked as Exts.A1 to A11. The respondents did not adduce any evidence. 3. The learned counsel appearing for the appellants contended that meagre amount was awarded by the tribunal to the appellant-Ginumon in M.A.C.A.No.23/2011, who sustained serious injuries in the accident. I have perused Ext.A3 wound certificate of Ginumon, which shows that he M.A.C.A.No.23/2011 & con.case 3 sustained lacerated injury on left pre-auricular area with exposed temporo mandibular joint, laceration on chin with a flap injury. Ext.A4 is the certificate issued from Malankara Orthodox Syrian Church Medical College, Kolencherry, in which it is stated that after taking CT- head, no significant intra cranial abnormalities were detected. His lacerated wound was sutured from the hospital. The learned counsel further contended that he was a degree student (BA) at the time of accident and was conducting the sale of Jack fruit and other business in the evening. The learned tribunal awarded the following amount as compensation. “ _Transport to hospital 500/-, Extra nourishment 500/-, Damage to_ ₹ ₹ _clothing_ ₹ _500/-. Medical expenses_ ₹ _3718/-, Pain and sufferings_ ₹ _5000/- and Loss of amenities_ ₹ _2000/-.”_ Considering the nature of injury and treatment expenses, appellant in M.A.C.A.No.23/2011 is entitled to get additional compensation as follows: M.A.C.A.No.23/2011 & con.case 4 Medical expenses : ₹2000/Pain and sufferings : ₹3000/Loss of amenities : ₹2000/----------Total : ₹7000/- ======= 4. Appellant, P.B. Nikhil in M.A.C.A.No.102/2011 sustained serious injuries. Ext.A8 is the wound certificate, which shows laceration on face on right side. Suspected left supra orbital depressed fracture. CT scan of the head was taken, but no significant intra cranial abnormalities were detected. He produced Ext.A11 medical bills for 3425/-.₹ The injured was a painter and was getting 6000/- per₹ month. Even though he deposed so, no evidence has been adduced to prove that income. The learned tribunal awarded a consolidated amount of 8000/. ₹ 5. Apex court in _**Syed Sadiq and others**_ v. _**Divisional Manager, United India Insurance Company Limited**_ [(2014) 2 SCC 735] held that _“in the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a_ M.A.C.A.No.23/2011 & con.case 5 _coolie and was earning Rs.4500/- per month at the time of the accident. This claim is reduced by the Tribunal to a sum of Rs 3000 only on the assumption that the wages of a labourer during the relevant period viz. in the year 2004, was Rs 100 per day. This assumption in our view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs 3000 per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.”_ In view of the decision rendered by the Apex Court in _**Syed's case (supra)**_ , the monthly income is taken as 6000/-. Hence the₹ M.A.C.A.No.23/2011 & con.case 6 appellant in M.A.C.A.No.102/2011 is entitled to get following amount as additional compensation: Transport to Hospital : ₹1000/Extra nourishment : ₹1000/Medical expenses : ₹4000/Pain and sufferings : ₹6000/Loss of amenities : ₹2000/Loss of income (1 month) : ₹6000/---------Total : 20,000/====== The tribunal awarded ₹8000/for the appellant in M.A.C.A.No.102/2011. The balance amount comes to ₹12,000/- . _6_ . _Section 147 (1) of the M.V. Act reads as follows:_ - “147. **Requirements of policies and limits of liability.** (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use M.A.C.A.No.23/2011 & con.case 7 of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the police or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee,- (a) engaged in driving the vehicle or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle or (c) if it is a goods carriage, being carried in the vehicle or (ii) to cover any contractual liability. Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be defective M.A.C.A.No.23/2011 & con.case 8 for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be f no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” According to the above Section, the owner of the goods or the representative of the owner of the goods are covered under the statutory policy. The insurance company took a contention that the appellants are gratuitous passengers and they are not covered under the policy, which was admitted by the tribunal. M.A.C.A.No.23/2011 & con.case 9 _7_ . This Court in _**United India Insurance Co. Ltd.** v._ _**Velayudhan** [2010(4) KLT 834]_ held that persons after unloading the goods travelling in goods vehicle are entitled to get the protection u/s.147 of the Act as the owner of the goods or representative of the goods. Paragraph 4 of the said ## decision reads as follows: “4. Let me first consider about the factual matrix. It is the definite case of the claimant that he was an employee of Mahima Modern Rice Mill. It is the case that rice was transported in the lorry from Kaladi to Cherthala and after unloading the rice while the vehicle was returning to Kaladi the accident occurred and therefore he still continues to be the authorized representative of the owner of the goods and therefore entitled to claim benefit of the insurance policy. The insurance company would contend that he has nothing to do with the goods and therefore he cannot be termed as the representative of the owner of the goods and further as there was no goods in the lorry at the time of the accident, he cannot be considered as a person representing the owner of the goods. Under S.147 of the Motor Vehicles Act as amended by Act 54 of 1994, a person accompanying the goods or the authorized representative of the owner of the goods are covered under the statutory policy. So, it has to be found whether he is an authorized representative of the goods. A Division Bench of this Court in the decision reported in United India Insurance Co. Ltd. v. Suresh (2006 (4) KLT 333) considered this position and held that the amended provision makes it explicitly clear that the word 'carried' qualifies the owner of goods or his representative and not the goods carried. The owner or the authorized 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. It was also a case where the accident M.A.C.A.No.23/2011 & con.case 10 took place where the persons were returning after unloading the goods. It was to be stated that the matter was taken up before the Supreme Court and the Supreme Court had reversed the decision of this Court in the decision reported in United India Insurance Co. Ltd v. Suresh (2008 (4) KLT 552 (SC). It has to be noted that the Supreme Court reversed the decision of this Court not on the finding on this point but altogether a different point for the reason that it was an auto rickshaw and it was not expected to carry person in a driver's seat. The Supreme Court held that the vehicle in which the goods were carried was not designed to carry another person and therefore carrying another person permitting him to share the seat of the driver is not correct and therefore that person will not have the status of the owner of the goods or the representative or the owner of the goods and thereby declined relief to those persons. The Supreme Court never considered this point but observed that "the High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision". In another decision rendered by a Division Bench of this Court reported in New India Assurance Co. Ltd. v. Alekutty Antony (2009 (4) KLT 130) a reference has been made to be Division Bench ruling and held that even when returning in a goods vehicle a person travels in the cabin of the vehicle which permits carrying of person in the cabin, he would be covered and the persons who travel in the platform are not authorized persons to be carried in the platform and declined to grant compensation to them. Or, in other words, the principle that a person continues to be the owner of the goods or representative of the owner of the goods even while returning after unloading of goods. When this is the factual position, learned counsel for the insurance company with all vehemence would argue that the decision of the Supreme Court in National Insurance Co. Ltd. v. Kaushalaya Devi & Ors. (2008 ACJ 2144) would apply on all force to the facts of this case and therefore the insurance company should be exonerated from the liability. It was a case where a person was travelling in a goods vehicle for the purpose of collecting boxes. At that time, the vehicle was loaded with vegetables. The person who had travelled in the vehicle was not the owner of the vegetables or the representative of the owner of the vegetables. He was only a prospective hirer, who had gone in the vehicle for the M.A.C.A.No.23/2011 & con.case 11 purpose of collecting cardboard boxes. In such a situation, the Supreme Court held that he cannot be termed as the owner of the goods or the representative of the owner of the goods. Learned counsel for the appellant had cited before me the decision rendered by the Karnataka High Court in National Insurance Co. v. Aishabi (2008 (3) KLT SN 8 (C.No. 11) (Karnt.) wherein the learned Judge of the said Court held that since if there are no goods in the vehicle, the insurer is not liable. But the Division Benches of the Kerala High Court had held otherwise and therefore I am not persuaded by the said decision to act. The Division Bench decision is a binding precedent for this Court. 5. So far as the present case is concerned, the owner of Mahima Modern Rice Mill was examined. He had deposed before Court that the claimant was authorized by him to travel in the mini lorry for the purpose of loading and unloading the rice at Cherthala. SO the object and purpose for which the claimant was travelling was for loading and unloading rice as the authorised representative of the owner of the rice. Therefore it has to be held that he was accompanying the lorry only in a representative capacity. It is true that nothing happened when the goods were taken. But the unfortunate accident took place while the lorry was returning after unloading the rice there. It has to be remembered that he is not a mere loading and unloading worker. He is an employee of the rice mill owner, who had transported rice from Kaladi to Cherthala and was returning back as an employee as the representative of the owner of the goods after discharging his functions assigned to him. Therefore he still continues to be the authorised representative of the owner of the goods. When it is so, S. 147 squarely comes to his rescue and he is liable to be covered under the terms and conditions of the policy. SO the award requires no interference. In the result, the appeal fails and the same is dismissed but without costs. Considering the evidence in this case, it is found that the appellants were travelling in the goods vehicle after sale M.A.C.A.No.23/2011 & con.case 12 of the jack fruits. They were covered under the conditions of the policy. Accordingly, the appellant in M.A.C.A.No.102/2011 is entitled to get enhanced compensation of ₹12,000/and the appellant in M.A.C.A.No.23/2011 is entitled to get additional compensation of ₹7000/with 7% interest and proportionate cost. The 3[rd] respondent insurance company is liable to satisfy the award within thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest. These appeals are disposed of as above. **P.D.RAJAN, JUDGE.** acd