MACA No. 1248 of 2016 - National Insurance Co. Ltd. v. Ramakrishnan and Prem Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940** ## **MACA.No. 1248 of 2016** **AGAINST THE AWARD IN OPMV 537/2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALAKKAD DATED 31-07-2015** ## **APPELLANT/2ND RESPONDENT:** **NATIONAL INSURANCE C0.LTD PALAKKAD,REPRESENTED BY THE ASST.MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN 682035.** **BY ADV. SRI.E.M.JOSEPH** ## **RESPONDENT/CLAIMANT & 1ST RESPONDENT:** |**1**|**RAMAKRISHNAN, AGED 47,**| |---|---| ||**S/O.MAYAN, KARIPPAYI HOUSE,**| ||**KARIMKULAM,ELAVANCHERY.P.O,**| ||**PALAKKAD-678508.**| |**2**|**PREMKUMAR, AGED 36,**| ||**S/O.DIVAKARAN,9/110, KOTTAYAMKAD HOUSE,**| ||**KARIMKULAM, ELAVANCHERRY,**| ||**NENMARA, PALAKKAD-678513.**| ||**BY ADVS.**| ||**SRI.T.K.SANDEEP**| ||**SRI.C.ANIL KUMAR**| ||**SMT.ASHA K.SHENOY**| ||**SMT.PREETHI KESAVAN(P-212)**| ||**SRI.P.RAMAKRISHNAN**| ||**SRI.PRATAP ABRAHAM VARGHESE**| ||**SRI.T.C.KRISHNA**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1248/2016 2 ## **JUDGMENT** The appeal on hand is directed against the award dated 31.7.2015 of the Motor Accidents Claims Tribunal, Palakkad (for short 'the Tribunal') in O.P(MV) No.537/2012. The appellant is the insurer of the offending vehicle. 2. The facts of the case in brief are to the following effect: At 9.30 am. on 13.01.2012, the petitioner, who was a loading and unloading worker belonging to CITU, had met with a motor accident while he was travelling in a Tractor bearing registration No.KL/8/F/6413, transporting some bricks. The hook joining the trailer with the tractor broke and thereby he fell down and sustained injuries. Alleging negligence on the driver of the tractor/trailor and seeking compensation of Rs.2,42,500/from the driver, owner and insurer of the said vehicle jointly and severally, a claim petition as above was preferred before the Tribunal. 3. The 1[st] respondent had filed written statement before the Tribunal denying negligence on his part while driving the vehicle. It is contended that the accident was occurred solely due to negligence of the petitioner himself. The age, occupation MACA.No.1248/2016 3 and income of the petitioner as claimed in the claim petition were also disputed. 4. The 2[nd] respondent, the insurer had filed written statement contending that coverage of risk of petitioner will be subject to terms and conditions of policy issued by them. It is further contended that the 1[st] respondent, who was driving the tractor/trailor was not rash and negligent. Dispute was also raised with respect to the injuries sustained, the period of hospitalization, age, occupation and income of the petitioner. 5. The claim petition was tried by the Tribunal. The petitioner had examined himself and two other witnesses as Pws 1 to 3 and adduced documentary evidence as Exts.A1 to A12. On the side of the 2[nd] respondent copy of FIS was also got marked in evidence as Ext.B1. 6. On appreciation of the entire evidence on record, the Tribunal found that the motor accident was occurred due to rash and negligent driving of the tractor/trailor by its driver, who was the 1[st] respondent before the Tribunal. The Tribunal had also arrived at a sum of Rs.94,700/- as compensation and directed the insurer to pay the said sum with interest at the rate of 9% per annum and proportionate costs. Aggrieved by the fixation of liability upon the insurer to indemnify the insured that this Court is approached in the captioned appeal. MACA.No.1248/2016 4 7. Sri.E.M.Joseph, the learned counsel for the appellant had contended in the written statement filed before the Tribunal that the policy issued by the insurer in respect of the tractor/trailor allegedly involved in the accident covers the risk of the petitioner, but only subject to terms and conditions incorporated therein. The copy of the policy was produced by the petitioner himself before the Tribunal as Ext.A7. It being a 'liability only policy', statutory liability alone will be covered. It is established from the oral evidence adduced by PWs2 and 3 that they were accompanying the petitioner in the tractor/trailor as loading and unloading workers. A specific plea was also raised by the petitioner in the claim petition that he was a member of the CITU union at the relevant time and travelled in the tractor/trailor after loading the bricks solely for unloading those at its destination. PW1 and PW2 have no claim that they were either employees of the owner of the brick kiln or owner or authorized representative of the owner of the bricks loaded in the Trailor. Ext.A7 being a “liability only policy”, the risk of a loading and unloading worker, will not be covered. Therefore, the Tribunal is perfectly erred in fixing liability on the insurer to indemnify the insured. MACA.No.1248/2016 5 8. The learned counsel for the claimant, has drawn this Court's attention to **Shivawwa and another v. Branch Manager, National India Insurance Company Ltd. and another (AIR 2018 SC1640 = 2018 KHC 6235)** and contended that evenif the insurer is found not liable to indemnify the insured, in view of the dictum in the decision cited, there is nothing wrong in directing the insurer to deposit the amount in favour of the insured and to get the same recovered from him. 9. Paragraphs 11 and 12 of the decision cited Supra being relevant contextually are extracted hereunder. “11. Assuming for the sake of argument that the insurance company was not liable to pay compensation amount awarded to the claimants as the offending tractor was duly insured, the insurer would be still liable to pay the compensation amount in the first instance with liberty to recover the same from the owner of the vehicle owner (respondent No.2), in light of the exposition in the case of National Insurance Co. v. Swarn Singh and Ors., (2004) 3 SCC 297) In paragraph 110 of the said decision, a threeJudge Bench of this Court observed thus: “110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object MACA.No.1248/2016 6 and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) xxx (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them. - (v) xxxx xxxx xxxx - (vi) xxxx xxxx xxxx - (vii) xxxx xxxx xxxx - (viii) xxxx xxxx xxxx - (ix) xxxx xxxx xxxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of S.149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under S.174 of the Act as arrears of land revenue. The certificate will be issued for the 15 recovery as arrears of land revenue only if, as required by Sub-section (3) of S.168 of the Act the insured fails MACA.No.1248/2016 7 to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” (emphasis supplied) 12. However in the facts of the present case, we have no hesitation in taking a view that consequent to affirmation and restoration of the finding of fact recorded by the Tribunal regarding the factum of deceased had travelled along with his goods at the time of accident, the insurer would be obliged to satisfy the compensation amount awarded to the claimants.” 10. In the case on hand, Ext.A7 policy did not cover the risk of the petitioner being a loading and unloading worker under the CITU union and not an employee under the 1[st] respondent, the owner/insured. The decision cited supra is not applicable to the case on hand. For the foregoing reasons, the appeal succeeds. In the result, the appeal is allowed in part. Part of the impugned award fixing liability upon the insurer to indemnify the insured is set aside. The insurer is exonerated from MACA.No.1248/2016 8 liability to compensate the petitioner. First respondent, the owner cum driver of the tractor/trailor, shall deposit the sum arrived at by the Tribunal as compensation payable with interest and costs. Sd/- **MARY JOSEPH** **JUDGE** ab