K. Mohanan v. Rethnamma, Binimol, Bijumon, Bijimol, The Manager, Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940** **MACA.NO. 749 OF 2017** **AGAINST THE AWARD IN O.P.(M.V..) NO.218/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 28-05-2016** **----------------------------** **APPELLANT(S)/1ST RESPONDENT :** **----------------------------** **K.MOHANAN, PROPRIETOR, AMBILA AND TILES, MALAYAM P.O., KOTTARAKKARA, KOLLAM DISTRICT.** **BY ADVS.SRI.M.V.THAMBAN SRI.K.V.ANIL KUMAR SRI.R.REJI** ## **RESPONDENT(S)/PETITIONERS & 2ND RESPONDENT:** **-----------------------------------------** ## **1. RETHNAMMA,** **W/O.RAJAPPAN, POPARAKANKAKATHIN VEEDU, PEREYAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695562.** ## **2. BINIMOL,** **POPARAKANKAKATHIN VEEDU, PEREYAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695562.** ## **3. BIJUMON,** **POPARAKANKAKATHIN VEEDU, PEREYAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695562.** ## **4. BIJIMOL,** **POPARAKANKAKATHIN VEEDU, PEREYAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695562.** ## **5. THE MANAGER,** **ORIENTAL INSURANCE CO.LTD., VIJAYA NAGAR BUILDINGS, PULAMON P.O., KOTTAKKARA, PIN-691531.** **R1-R4 BY ADV. SRI.R.T.PRADEEP** **R5 BY ADVS. SRI.GEORGE CHERIAN (SR.)** **SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **C.R.** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.749 of 2017 ---------------------------------Dated this the 13[th] day of April, 2018** ## **J U D G M E N T** The short question that arises for consideration in this appeal is whether the mahout travelling along with elephant on the platform as per statutory direction is a gratuitous passenger? If so, whether the insurer can avoid its liability on that ground? Appellant herein is the owner of the lorry KL-02/B-3229 which was insured with Oriental Insurance Company Ltd., the 5[th] respondent herein, and the vehicle met with an accident on 05.10.2007 and one Rajappan who is the passenger in the lorry died. The legal heirs and dependants of late Rajappan preferred O.P.(M.V.) No.218 of 2008 before the Motor Accidents Claims Tribunal, Attingal and the learned Tribunal awarded a compensation of Rs.8,39,000/- (Rupees Eight Lakh Thirty Nine Thousand only) with interest and cost, exonerated the insurer from the liability and directed the appellant to pay M.A.C.A. No.749 of 2017 2 compensation. Being aggrieved by that, the owner of the vehicle preferred this appeal. 2. The claimants case in the Tribunal was that on 05.10.2007 at 9 am, the deceased Mahout was travelling along with the elephant on the platform of the lorry KL-02/B-3229 from Punalur to Anchal, when they reached at Mavila Junction, the driver swerved the vehicle, thereby the elephant and the Mahout fell down from the lorry and sustained serious injuries. Immediately, he was removed to Government Hospital, Punalur where he succumbed to the injuries. The owner (R1) of the lorry disputed the accident and the insurer (R2) admitted the insurance of the vehicle in the lower court. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A9. Respondent's documents was marked as Ext.B1. 3. Learned counsel appearing for the appellant contended that the deceased was travelling on the platform of the lorry as per direction in Kerala Captive M.A.C.A. No.749 of 2017 3 Elephant (Management and Maintenance) Rules, 2003 (for short, Rules 2003) which was issued by the Government of Kerala. The norms and standards for transportation provide that Mahout shall sit near the captive elephant on the platform and separate seating must be provided to him. There is no violation of the policy conditions as provided under Sec.147 of the Motor Vehicles Act (for short, M.V. Act) and the mahout cannot be treated as a gratuitous passenger. 4. Learned counsel appearing for the insurer contended that the captive elephant is not 'goods' as defined under the Motor Vehicles Act. The mahout can travel inside the cabin which is protected under Sec.147 of the Motor Vehicles Act, 1988. The platform is meant for goods alone and owner of the goods or his authorized representatives are permitted to travel inside the cabin. A person who travels on the platform of the vehicle is treated as a gratuitous passenger and it is a violation of the policy conditions. M.A.C.A. No.749 of 2017 4 5. In this context, I may refer the definition 'goods' defined under Sec.2(13) of the Motor Vehicles Act. It means “Goods” includes live-stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle.” According to Sec.2(14) “goods carriage” means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. The definition goods includes 'live stock' except living person, the captive elephant does not come under the definition of goods and it is termed as a wild animal under The Kerala Captive Elephant (Management and Maintenance) Rules, 2003. Admittedly the lorry was carrying a captive elephant which is a wild animal and the deceased mahout was travelling on the platform along ## M.A.C.A. No.749 of 2017 5 ## with the elephant. ## 6. Section 147 of the Motor Vehicles 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 subsection (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 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 policy 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 ## M.A.C.A. No.749 of 2017 6 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 effective for a period of four months after such commencement or ## M.A.C.A. No.749 of 2017 7 till the date of expiry of such policy whichever is earlier. (3) A policy shall be of 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.” 7. A plain reading of the Section quoted above would show that owner of the goods or his authorised representative carried in the vehicle are covered under S.147 of the Act 1988. As per S.147(1)(b)(i), the policy is M.A.C.A. No.749 of 2017 8 required to cover the person or class of persons specified in the policy under sub-section (i) of Section(1), 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 damages to any property of a third party caused by or arising out of the use of the vehicle in a public place. What is clear from the above Section is that the owner of the goods or his authorised agent is covered under the policy, which is a statutory requirement provided under the above Section. An owner of the vehicle carrying passengers must pay premium for covering passengers risk in a passenger vehicle. Any liability other than the liability provided under the Act is to be extended under the insurance policy only on payment of additional premium. Therefore the scheme of the Act does not ensure any statutory liability on the insurer to pay compensation for any person travelling on the platform of a goods vehicle. Therefore, any passenger ## M.A.C.A. No.749 of 2017 9 other than a person mentioned under S.147(1)(b) does not cover by such policy. 8. Learned counsel appearing for the Insurance Company has drawn my attention to the decision of the Apex Court reported in **National Insurance Co. Ltd** v. **Cholleti Bharatamma [2008 (1) SCC 423]** in which it was held as follows: 7. In **Ramesh Kumar** v. **National Insurance Co. Ltd. (2001) 6 SCC 713** this Court categorized the cases arising out of the Motor Vehicles Act, 1939, stating: (SCC pp.721-22, paras 3-4) “3. The first category of cases arise out of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the old Act'). The question raised for this category is: “Whether the insurance company is liable to pay the compensation on account of the death or bodily injury of the gratuitous passengers including the owner of the goods or his representative, travelling in a goods vehicle under Section 95 of the said Act?' 4. The second category of cases arise out of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the new Act') prior to its amendment in 1994. In this category also a similar question is raised. The third ## M.A.C.A. No.749 of 2017 10 category of cases also arise under the new Act but after its amendment by Act 54 of 1994. In this category also the same question is raised.” 8. The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorized representative. 9. Correctness of the decision in Satpal Singh (2000) 1 SCC 237:2000 SCC (Cri) 130: 2000 ACJ 1 came up for consideration before a three-Judge Bench of this Court in New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223: 2003 SCC (Cri) 493. 10. In Asha Rani (2003) 2 SCC 223: 2003 SCC (Cri) 493 having regard to various definitions involving the legal question, it was held:(SCC pp.234-35, paras 2328). “23. The applicability of the decision of this Court in Mallawwa v. Oriental Insurance Co. Ltd. (1999) 1 SCC 403:1999 SCC (Cri) 58 in this case must be considered keeping that aspect in view. Section 2(35) of the 1998 Act does not include passengers in goods carriage whereas Section 2(25) of the 1939 Act dis as even passengers could be carried in a goods vehicle. The difference in the definitions of 'goods vehicle' in the 1939 Act and 'goods carriage' in the 1988 Act is significant. By reason of the change in the definitions of the ## M.A.C.A. No.749 of 2017 11 terminology, the legislature intended that a goods vehicle could not carry any passenger, as the words' in addition to passengers' occurring in the definition of goods vehicle in the 1939 Act were omitted. Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use 'solely for the carriage of goods'. Carrying of passengers in a 'goods carriage', thus, is not contemplated under the 1988 Act. 24. We have further noticed that Section 147 of the 1988 Act prescribing the requirements of an insurance policy does not contain a provision similar to Clause(ii) of the proviso appended to Section 95 of the 1939 Act. The decision of this court in Mallawwa case (1999) 1 SCC 403:1999 SCC (Cri) 58 must be held to have been rendered having regard to the aforementioned provisions. 25.Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle'. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage'. ## M.A.C.A. No.749 of 2017 12 26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used i.e. ' a third party'. Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor. 27. Furthermore, sub-clause (I) of Clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, whereas sub-clause(ii) thereof deals with liability which may be incurred by the owner of a vehicle 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. 11. The effect of the 1994 Amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1: 2004 SCC (Cri) 370 wherein this Court following Asha Rani (2003) 2 SCC 223:2003 SCC ## M.A.C.A. No.749 of 2017 13 (Cri) 493 opined that the words “injury to any person” would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. The question came up for consideration again in National Insurance Co. Ltd. v. Bommithi Subbhayamma (2005) 12 SCC 243 wherein upon taking into consideration a large number of decisions, the said view was reiterated. 28. An owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. But if the ratio of this Court's decision in New India Assurance Co. v. Satpal Singh (2000) 1 SCC 237:2000 SCC (Cri) 130:2000 ACJ 1 is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an insurance policy, they would be deemed to have been covered under the policy wherefor even no premium is required to be paid.” (emphasis applied) 9. When a gratuitous occupant carries in a goods vehicle there is no requirement to cover the risk to such persons. A reading of Sec.147 of the M.V. Act clearly establishes the liability of the insurer and shows a M.A.C.A. No.749 of 2017 14 wider and comprehensive meaning while giving an effective and practical meaning to the object of the provisions, it clearly indicates that every policy of insurance is statutorily required to cover the risk of liability in respect of class of a person relating to all types of vehicle without exception and the insurance company cannot disown the liability to particular class of person or particular kind of vehicle. According to Sec.147 of the Motor Vehicles Act, 1988, the Policy of insurance must be a policy which insures a person or class of persons specified in the policy to the extent specified in Subsection 2. In this case, the deceased was a mahout, who was appointed for the supervision of elephant while transit according to the Kerala Captive Elephant (Management and Maintenance) Rules 2003, who is permitted to travel on the platform along with the elephant as per the statutory direction. 10. In this backdrop, it is better to refer The Kerala Captive Elephant (Management and Maintenance) M.A.C.A. No.749 of 2017 15 Rules, 2003. In exercise of powers conferred by subsection (2) of Section 64 of the Wild Life Protection Act 1972 (Central Act 53 of 1972) the Government of Kerala made the rules and Forest and Wild Life Department issued notification. According to Rule 2(1)(f) “Mahout' means the person who manages the captive elephant. Rule 3(1) says that 'for taking care of each elephant, the owner thereof shall engage a mahout having at least 3 years of experience in managing an elephant', Rule 3(2) says that 'the experience of the mahout shall be certified by the officer authorized for the purpose by the Chief Wildlife Warden', Rule 3(3) says that, 'Every mahout shall attend training programmes in elephant care as and when called for by the Forest Department and it shall be the responsibility of the owner to facilitate the above training by relieving the mahout after making suitable arrangement' and Rule 3(4) says that,'the owner shall engage the cavady to assist the mahout'. The Norms and Standards for Transportation are mentioned under M.A.C.A. No.749 of 2017 16 Rule(8). Subrule 8(15) says that, 'each truck or wagon carrying elephant should have at least two attendant mahouts'. 11. The Kerala Captive Elephant (Management an Maintenance) Rules, 2003 permits the owner to engage a mahout having three years experience for management of the elephant or for taking care of such elephant carried in a wagon or in a truck carrying the elephant, which is made for taking care of the captive elephant alone. In such a situation, the mahout travelling in the platform along with the captive elephant cannot be considered as a gratuitous passenger. The place of travel inside the cabin or on the platform is not mentioned in Kerala Captive Elephant (Management an Maintenance) Rules, 2003. A reading of the Rules show that the mahout and cavadi are permitted to travel along with the elephant in the vehicle. The elephant, being a wild animal, it needs constant observation and care by a trained mahout and cavadi. The facts may be further ## M.A.C.A. No.749 of 2017 17 analysed on the basis of Gazette notification extraordinary, dated 17.07.2008, Forest and Wildlife (F) Department. ## NOTIFICATION G.O.(P) No.41/08/F&WLD Dated, Thiruvananthapuram, 3[rd] July 2008 S.R.O.No.767/2008- In exercise of the powers conferred by sub-section (1) of section 48A of the Wild Life (Protection) Act, 1972 (Central Act 53 of 1972), the Government of Kerala hereby authorize the concerned Territorial Divisional Forest Officers of Kerala Forest Department to issue transport permit for the movement of captive elephants to neighboring States. ## Explanatory Note As per section 48A of Wildlife (Protection) Act, 1972 (Central Act 53 of 1972) the State Government may authorize any officer to grant permission for the transportation of any wild animal (other than vermin) or any animal article or any special plants or parts or derivative thereof. Transportation of captive elephants outside the State without adequate safety measures has been a major cause of concern during exhibition of elephants in ## M.A.C.A. No.749 of 2017 18 public places. Presently the Chief Wildlife Warden is the only authority to issue permits for transportation of elephants within the State and outside of State Government have decided to authorize all Territorial Divisional Forest Officers of Kerala Forest Department to issue permits for transportation of captive elephants to neighbouring States to simplify the procedure and to ensure adequate safety measures during transport. As per Circular No.1/2009 dated 14.01.2009 issued by the Forest and Wildlife (F) Department, Thiruvananthapuram, which describe about the guidelines for transit of captive elephant and the Range Divisional Officers have to ensure various conditions while transiting elephants in vehicle from one place to another. 12. The Kerala Captive Elephant (Management and Maintenance) Rules, 2003 was issued under Section 64 of the Wildlife (Protection) Act, which empowers the State Government to make the rules. The extraordinary gazette was published under Section 48A of Wild Life (Protection) Act, 1972. Considering the risk in transportation of the captive elephants outside State without adequate safety measures, it will create major M.A.C.A. No.749 of 2017 19 concerns during the exhibition of elephants in public place. While issuing permit for transportation of elephants within the state and outside the State, all Territorial Divisional Forest Officers of Kerala Forest Department and the Range Officers are while issuing permits for transportation of captive elephants according to the rules and notification and it simplify the procedure and ensure adequate safety measures during transport. Clause 11 says that while transportation of the captive elephants, accompanying mahout has to travel along with the elephants in the platform, separate seat has to be provided for the protection from sunlight and rain. Clause 11 reads as follows: “ÏÞdÄÏßÜá¿Èà{¢ ¦ÈÏáæ¿ µâæ¿ ÉïÞxíçËÞÎßW ÈßVÌÈÁíÎÞÏᢠ²øá ÉÞMÞX ©IÞÏßøßçAIÄÞÃ.å¿ßÏÞÈáå§øßMß¿Õá¢ååæÕÏßÜᢠÎÝÏᢠ¯WAÞÄßøßAÞÈáU ØìµøcÕᢠÕÞÙÈJßW ©IÞÏßøßAâ” In the instant case, the Mahout was travelling in the platform of the lorry at the time of transit which would save him different from any other gratuitous passenger. If that be the position, the Mahout travelling in the plat M.A.C.A. No.749 of 2017 20 form of the lorry with the elephant, is permitted under the Kerala Captive Elephant (Management & Maintenance) Rules, 2003 and the notification issued by the Government of Kerala, Extra Ordinary Gazette dated 17.07.2008 issued by the Kerala Forest & Wild Life (F) Department and he is not a gratuitous passenger. The insurer has no case that the authorised officer never granted permission for transportation of the elephant in the aforesaid lorry. The insurer has no dispute with regard to the protection as provided under Clause (11) of the above Government Order. If that be the position, the contention of the insurer that the mahout is a gratuitous passenger is unsustainable in law. They have no case that the insured has to pay additional premium according to the Kerala Captive Elephant Management Maintenance Rules, 2003. 13. The insurance is a contract between insured and the insurer, whereby, in consideration of payment of premium by the insured, and thereby the insurer agree to make good any financial loss of the ## M.A.C.A. No.749 of 2017 21 insured. The relief is aimed at protecting the loss of property and life of the insured through the professional risk of the insurer and they cannot evade liability on lame excuses. In the circumstances, the direction to satisfy the award by the appellant owner who is the 1[st] respondent in O.P.(M.V.) No.218 of 2008 is hereby set aside and the insurer is directed to satisfy the award. 14. In fatal accident case, the measure of damage is towards the pecuniary losses, which is to be suffered by the dependents as a result of the death. But the assessment of damages to the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables. The life expectancy of the deceased and the dependants are the major factors. Secondly the amount that the deceased would have earned during the remaining period of his life, the amount that he would have contributed to the dependants during that period is also relevant. The chances that the deceased may not have lived or the M.A.C.A. No.749 of 2017 22 dependants may not live up to the estimated remaining period of their life expectancy. The chances that the deceased might have got better job prospects and earned more income also has to be considered while fixing compensation. Apex Court in **National Insurance Company V. Pranay Sethi [2017 (4) KLT 662 (SC)]** held that “reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years”. In this case, the learned Tribunal awarded Rs.10,000/- for loss of estate, Rs.1,00,000/- for loss of consortium and Rs.25,000/- for funeral expense. That amount is modified as Rs.15,000/-, Rs.40,000/- and Rs.15,000/- (Total Rs.70,000/-). Hence Rs.65,000/- has to be deducted from the award amount of Rs.8,39,000/-. The balance is Rs.7,74,000/-. The insurer is directed to pay Rs.7,74,000/(Rupees Seven Lakh Seventy Four Thousand only) with M.A.C.A. No.749 of 2017 23 9% interest and proportionate cost within thirty days from the date of receipt of a copy of this judgment failing which it will carry 12% interest from the date of default. This M.A.C.A is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS / True Copy/ P.A. To Judge