MACA NO. 367 OF 2014

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 29 [ TH ] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 ``` ``` MACA NO. 367 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 30.01.2010 IN OPMV NO.1587 OF 2003 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , THRISSUR ``` ## `APPELLANT/3RD RESPONDENT:` ``` THE NATIONAL INSURANCE CO.LTD REPRESENTED BY ITS MANAGER, REGION OFFICE, 2ND FLOOR, OMANA BUILDING, MG ROAD,KOCHI-35. BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI ``` ## `RESPONDENT/CLAIMANT/RESPONDENTS/RESPONDENTS 1 AND 2:` - `1 PRABHAKARAN S/O ARUMUGHAN, KANNATHU HOUSE KATTIPALA.P.O VATTAMKULAM MALAPPURAM, PIN - 679578` - `2 RANCY GEORGE S/O GEORGE EDKKALLATHUR HOUSE KILLIMANGALAMVILLAGE, KILLIMANGALAM.P.O THRISSUR, PIN - 680591` ``` 3 E.G FRANSIS S/O GEORGE EDKKALLATHUR HOUSE KILLIMANGALAMVILLAGE, KILLIMANGALAM.P.O THRISSUR, PIN - 680591 ``` ## `OTHER PRESENT:` ``` SRI.. CHERIAN A GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 367 OF 2014 ``` ``` 2 ``` ## **J U D G M E N T** ``` This appeal is at the instance of the 3 rd ``` ``` respondent insurer in OP(MV) No.1587 of 2003 on the file of Additional Motor Accidents Claims Tribunal, Thrissur disowning the liability under the award, alleging that the 1 st respondent/claimant was only a gratuitous ``` ``` passenger in a goods auto rickshaw, apart from alleging violation of the policy conditions, as well as the quantum of compensation. ``` `2. The 1 st respondent/claimant met with a` ``` road traffic accident on 8/3/2003 while he was travelling in KL-8V 9182 goods auto rickshaw carrying his goods such as toys and other fancy items from the temple premises at Killimangalam to Thonnurkkara. ``` ``` 3. In the OP(MV), the 1 st respondent was the ``` ``` MACA NO. 367 OF 2014 ``` ``` 3 ``` ``` driver of the autorickshaw, the 2 nd respondent ``` ``` was its owner and the 3 rd respondent was its insurer. ``` ``` 4. Respondents 1 and 2 remained ex-parte, and the 3 rd respondent-insurer appeared and ``` ``` admitted the policy. But according to them, since the offending vehicle was a goods auto rickshaw, the insurer was not liable to ``` ``` compensate the claimant, as he was only a gratuitous passenger. Moreover, the 1 st ``` ``` respondent-driver had no valid driving licence to drive the auto rickshaw, and so there was violation of the policy conditions also. ``` `5. Learned Tribunal found that, the claimant` ``` was the owner of the goods in that ``` ``` autorickshaw, and he was not a gratuitous passenger, and so he was found eligible to get ``` ``` MACA NO. 367 OF 2014 ``` ``` 4 ``` ``` compensation. Against his claim of ``` ``` Rs.2,50,000/-, learned Tribunal awarded compensation of Rs.49,000/- making the 3 rd respondent-insurer liable to pay the ``` ``` compensation amount, as the offending vehicle was validly insured with them. ``` ``` 6. In the appeal, though service was ``` ``` complete respondents 1 to 3 i.e the claimant, driver, and owner of the autorickshaw respectively, remained absent. ``` ``` 7. Now this Court is called upon to answer whether there is any illegality, irregularity or impropriety in the impugned award warranting interference by this Court. ``` ``` 8. Learned counsel for the appellant would submit that, the offending auto rickshaw was a goods vehicle, and the 1 st respondent-claimant ``` ``` MACA NO. 367 OF 2014 ``` ``` 5 ``` ``` was only a gratuitous passenger in that autorickshaw, and so the company was not liable to compensate him. He relied on the decision ``` ``` Bajaj Allianz General Insurance Co. Ltd. v. Bheema and another [2021 (6) KLT 462 : [2021 ``` ``` (4) KLJ 849]], to say that ‘the passenger in a goods vehicle is not covered by the policy of insurance, unless he was travelling in that ``` ``` vehicle as the owner of the goods. When the seating capacity of the vehicle is only one, nobody is permitted to travel in a goods auto rickshaw other than the driver. No other person ``` ``` whether a passenger or as an owner of the vehicle was supposed to share the seat of the ``` ``` driver as it is in violation of the conditions ``` ``` of the contract of insurance’. But in that case, there was a clear finding that the injured was travelling in the goods auto ``` ``` MACA NO. 367 OF 2014 ``` ``` 6 ``` ``` rickshaw sharing the seat of the driver, where the driver alone was permitted to travel. In the case on hand, Ext.B1 policy of insurance shows that it was a package policy and additional premium was collected for one ``` ``` employee also. Moreover, Ext.A1 FIR and A2 statement clearly show that, the 1 st ``` ``` respondent-claimant was a vendor of toys and fancy items in temple premises, in connection with temple festival, and after the temple festival at Killimangalam, he was taking the fancy items and toys in the offending auto rickshaw to another temple compound at ``` ``` Thonnurkkara. So obviously he was the owner of the goods carried in that autorickshaw. Section 147(1)(b)i)reads as follows:- ``` ``` “147. Requirements of policies and limits of liability. -(1) In order to comply with the ``` ``` MACA NO. 367 OF 2014 ``` ``` 7 ``` ``` requirements of this Chapter, a policy of insurance must be a policy which- ``` ``` 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 authorized representative carried in the motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place.” ``` ``` 9. Since there is clear evidence to show that the 1 st respondent-claimant was the owner of the goods carried in the offending auto rickshaw, he is also covered by the policy and so the appellant-insurer is liable to indemnify the insured so as to compensate the injured. So the contention of the appellant that they had no liability to indemnify the injured as the claimant was only a gratuitous passenger in a ``` ``` MACA NO. 367 OF 2014 8 ``` ``` goods auto rickshaw is liable to be turned down. ``` ``` 10. Learned counsel for the appellant would contend that, though the 1 st respondent ``` ``` claimant did not produce any document to show that he suffered any kind of disability due to the accident, learned Tribunal awarded a lump ``` ``` sum amount of Rs.8,000/-. According to him, without any materials to prove that the injured had suffered any kind of disability, learned Tribunal ought not have awarded any amount ``` ``` under the head disability. The available facts and evidence will not suggest that the 1 st respondent/claimant had suffered permanent ``` ``` disability to any extent. So this court is inclined to set aside the compensation awarded by the Tribunal under the head disability and ``` ``` MACA NO. 367 OF 2014 ``` ``` 9 ``` ``` so Rs.8000/- awarded under that head is liable to be deducted from the total compensation awarded. So he is entitled to get the balance compensation of Rs.41,000/-. [49000-8000] ``` ``` 11. The next contention taken up by learned counsel for the appellant is that, the 2 nd st respondent (1 respondent-Driver) was not having a valid driving licence to drive the offending auto rickshaw at the time of accident. They have taken up a specific plea in their written statement challenging the driving licence of the 2 nd respondent. They filed IA No.4234 of 2008 before the Tribunal for a direction to the 1 st respondent/driver to produce his driving licence. The 1 st ``` ``` respondent/driver remained ex-parte, and no driving licence was produced by him. So this ``` ``` MACA NO. 367 OF 2014 10 ``` ``` court is constrained to infer that the 2 nd respondent (1 st respondent in the OP(MV)) had no valid driving licence at the time of accident, ``` ``` and hence there was violation of the policy conditions. So, though the company is liable to compensate the injured initially, the ultimate liability rests upon the owner and driver and so the company can recover the compensation amount from respondents 2 and 3-the driver and owner of the autorickshaw. ``` ``` 12. In the result, the appeal is allowed in part modifying the award amount by reducing Rs.8,000/- and fixing it as Rs.41,000/-. ``` ``` Initially the appellant shall deposit that amount with 7% interest per annum, from the date of petition till the date of deposit, if that amount is not deposited yet. If it was ``` ``` MACA NO. 367 OF 2014 ``` ``` 11 ``` ``` deposited already, the excess amount if any can be withdrawn by the appellant. The appellant is at liberty to recover the compensation amount paid to the 1 st respondent/claimant, from ``` ``` respondents 2 and 3 and their assets. ``` ``` 13. It is made clear that, in any ``` ``` proceedings initiated by the appellant to recover the amount received by the 1st ``` ``` respondent/claimant, respondents 2 and 3, are ``` ``` at liberty to produce the driving licence of the 2 nd respondent during the relevant period, so as to get exoneration from their liability. ``` ``` The appeal is allowed in part to the extent as above, and no order is made as to costs. ``` ``` Sd/- ``` ``` SOPHY THOMAS, JUDGE ``` ``` ska ```