K.T. Simon and Others v. Deepak Bastin and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** ## **MACA.No.452 OF 2012** **AGAINST THE AWARD DATED 18-10-2010 IN OP (MV)684/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/1ST RESPONDENT,2ND RESPONDENT AND LRS:** **1 K.T.SIMON,HOUSE NO 8/474,KANNAMPARAMBU, THAYKAVU,CHERANELLUR P.O.,ERNAKULAM.** - **2 ANISH ANTONY,S/O.ANTONY (EXPIRED) 3 ANTONY F/O.ANISH ANTONY,ITTIPATTA HOUSE, CHERANELLOOR P.O.,KOCHI-34.** - **4 REENA, M/O.ANISH ANTONY, ITTIPATTA HOUSE,CHERANELLOOR P.O., KOCHI-34.** ## **BY ADV. SRI.VARGHESE PREM** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 3 TO 5:** - **1 DEEPAK BASTIN,S/O.DINITIOUS, KUNNAPPILLY HOUSE,CHERANELLOOR, ERNAKULAM-682 034.** - **2 THE ORIENTAL INSURANCE COMPANY LTD., EBENEZAR GARDEN,EDAPALLY H.S. JN,KOCHI-683 024.** - **3 THE MANAGING DIRECTOR,K.S.R.T.C., THIRUVANANTHAPURAM-695 001.** - **4 SASIDHARAN,S/O.MADHAVAMENON, KALLIKATU HOUSE,THIRUVANCHIKULAM P.O., METHALA VILLAGE,KODUNGALLOOR-680 664.** - **R1 BY ADV. SRI.P.M.BENZIR R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA R1 BY ADV. SRI.JAICE JACOB R1 BY ADV. SRI.G.G.MANOJ R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No.452/2012 2 ## **JUDGMENT** The owner and the legal representative of the driver of the motor cycle bearing registration No. KL-7/8012 are in appeal against the award of the learned Motor Accidents Claims Tribunal, fastening the liability to pay compensation to the first respondent allegedly insured with the second respondent. The facts leading to filing of the claim petition by the first respondent before the learned MACT were that while being a pillion rider of the motor cycle aforementioned, driven by Aneesh, the driver since deceased in the KSRTC bus bearing registration No. KL-15-3929 knocked down the petitioner and result thereof caused injuries on his person. It was asserted that the accident occurred solely due to the negligence of the drivers of the vehicles involved in the accident and the claim was sought by impleading the driver of the motor cycle as well as the KSRTC bus, including the owner. 2. The first and second respondents contested the claim petition, attributed the negligence on the driver M.A.C.A.No.452/2012 3 of the bus and alleged that the motor cycle was insured with the third respondent, i.e., the Oriental Insurance Company as the premium was paid on 16.09.2004, that is the date of the accident. The third respondent denied the coverage of insurance policy rather categorically stated that the earlier coverage was only upto 18.08.2004 and the insurance cover was issued only on17.09.2004. Since the parties were at variance, the learned MACT framed the following three issues: “1. On whose fault the accident occurred? 2. Whether the petitioner is entitled for any compensation? If so the quantum and from whom? 3. Reliefs and costs?” 3. The claimant/first respondent brought on record Exts.A1 to A10, whereas the Insurance Company Exts.B1 and B2. Copy of F.I.R. registered against the appellant No.1 as well as charge sheet Ext.A4, driving M.A.C.A.No.452/2012 4 licence, cash receipts, scene mahazar, whereas Exts.B1 and B2 are the policy certificates dated 17.09.2004 and 19.08.2003. 4. On preponderance of the evidence, particularly the scene mahazar and in the absence of examination of any eye witness or claimant, the learned MACT exonerated the driver of the KSRTC bus and fastened liability on the owner and the driver of the motor cycle, that is the appellants. The claimant was awarded a compensation of Rs.1,98,377/- along with the interest at the rate of 8% from the date of the filing of the petition, that is 31.12.2004. 5. Adv. Mr. Varghese Prem, the learned counsel appearing on behalf of the appellant submitted that the award of the learned MACT is not sustainable in the eyes of law as it suffers not only from irregularity but also erroneous and a result of misdirection misreading of both of the written and documentary evidence. Ext.A10, the receipt reveals that the premium in cash was paid on 16.09.2004, that is the date of the accident. As a result M.A.C.A.No.452/2012 5 thereof, the owner was indemnified by the Insurance Company dehore of the fact that the insurance policy was issued on 17.09.2004. The finding of the learned MACT of not producing the policy is neither here and there as insurance company in order to have effective and proper adjudication of lis brought on record Ext.B1 and on perusal of the insurance policy, an extra premium of Rs.48/- other than Rs.50/- as personal accident was charged by the insurance company. The extra loading charges of Rs.48/- would mean and construed to be a consideration for indemnifying the pillion rider, thus the law laid down by the Supreme Court in **United India Insurance Co. Ltd. v. Tilak Singh** [2006 (2) KLT 884 (SC)] would not come to the rescue of the Insurance Company. In the alternative, he submitted that the learned tribunal erroneously exonerated KSRTC as the scene mahazar has not been read in correct perspective. In the absence of any circular issued by the Indian Motor Tariff or any definition of loading, premium of Rs.48/would be construed to be an extra premium covering on M.A.C.A.No.452/2012 6 the pillion rider. 6. Mr. George Cherian, the learned senior counsel assisted by Ms. K.S. Santhi, for the third respondent Oriental Insurance Company refuted the contention of Mr. Varghese Prem, by relying upon the specific averments in the written statement of denying the insurance coverage on the date of the accident, that is on 16.09.2004. There was no contract on that date, in fact there was no insurance policy. The appellants were playing hide and seek as if at all they were in possession of the policy nothing prevented them to produce on record. On the contrary, as already noticed by this Court, brought on record by the Insurance Company. There had been a practice where the insurance policies issued without inspecting the vehicles resulting into causing a loss to the insurance exchequer and in the present era, the insurance policies, without the inspection of the vehicles, are not issued. Even assuming for an arguments, it though admitting the insurance policy was in existence owing to the receipt of the alleged premium. M.A.C.A.No.452/2012 7 Insurance Company cannot indemnify the pillion rider as it was an 'Act policy'. The off loading premium of Rs.48/in no manner can be construed to be a consideration or indemnifying the pillion rider. It is on account of charging of the premium in case there had been a claim in the previous policy. Insured had not been diligent in insuring the vehicle as there was almost gap of one month as previous policy expired on 18.08.2004 thus, there can be hardly any scope for interference in the present appeal in view of the well reasoned and justified findings of the MACT. 7. I have heard the counsel for the parties, appraised the paper book and records of the case as well as the judgment cited at bar and of the view that there is no substance and merit in the submission of Mr. Varghese Prem. The facts which are not in dispute is the existence of an Act policy though the dispute with regard to the issuance that is whether it would have an effect on 16.09.2004 and 17.09.2004 have seriously been raised. Assuming for an argument, the insurance policy was M.A.C.A.No.452/2012 8 issued in view of the judgment referred above but in the absence any extra premium covering the liability of the pillion rider, insurance company cannot be fastened with the liability. In this regard, paragraph 21 of the judgment is extracted hereunder: “21. In our view, although the observations made in Asha Rani case (2003 (1) KLT 165 (SC) = (2003) 2 SCC 223), were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.” 8. There would have been a force in the argument of Mr. Varghese Prem, in case mechanical reports of vehicles, in addition to the scene mahazar had seen the light of the day. In my view, the appellants have failed to discharge the onus in awarding off liability. M.A.C.A.No.452/2012 9 For the reasons aforementioned, I am of the view that the finding of the learned MACT do not call for any interference. The appeal stands dismissed. Sd/- **AMIT RAWAL JUDGE** ncd