MACA No.1484/2011 and connected cases

**MACA No.1484/2011 and connected cases 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 MACA NO. 1484 OF 2011** ## **AGAINST THE AWARD IN OPMV 850/2003 DATED 31.07.2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THIRUVANANTHAPURAM APPELLANT/1ST RESPONDENT IN CLAIM PETITION:** M/S.RELIANCE INDUSTRIES LTD. C/O.YARN MARKETING DEPOT, KARAPADA, NEAR NAROLI, SILVESSA, 395235,UNION TERRITORY OF DADRA &, NAGAR HAVELI. BY ADVS. SRI.A.KRISHNAN SRI.RAGHUL D. PANICKER ## **RESPONDENTS/CLAIMANT & RESPONDENTS 2 & 3 IN CLAIM PETITION:** 1 DEEPU, AGED 31 YEARS,S/O.SADANANDAN, PANACKAMCHIRAYIL HOUSE, SOUTH OF THEVALAKKADU,, VADAYAR P.O.,THALAYOLAPARAMBU,, KOTTAYAM DISTRICT-686605 2 E.GOPINATH SO.ELANGOVAN MAHALINGAM HOUSE, PALLIMUGAL CHRISTIAN CHURCH,, WORKING AT TMPS, PBVN, BRAHMAPURAM,, ERNAKULAM DISTRICT-682303 3 THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE, CO.LTD,, ARCADIA 195,NCPA ROAD, NARIMAN POINT,, MUMBAI-400001. BY ADV SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, ALONG WITH MACA.1549/2011, 1550/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA No.1484/2011 and connected cases 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 MACA NO. 1549 OF 2011** ## **AGAINST THE AWARD IN OPMV 848/2003 DATED 31.07.2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THIRUVANANTHAPURAM APPELLANT/1ST RESPONDENT IN CLAIM PETITION:** M/S RELIANCE INDUSTRIES LTD. C/O YARN MARKETING DEPOT., KARAPADA, NEAR NAROLI,, SILVESSA. 395 235., UNION TERRITORY OF DADRA & NAGAR HAVELI, BY ADV SRI.A.KRISHNAN ## **RESPONDENTS/CLAIMANAT & RESPONDENTS 2 & 3 IN CLAIM PETITION:** 1 BENNYCHAN @ JOSEPH AGED 36 YEARS,, S/O XAVIER, CHAKKALACKAL HOUSE,, SOUTH OF KUDAVACHOOR CHURCH, VENCHOOR VILLAGE,,P.O. VAIKKOM, KOTTAYAM DISTRICT. 686 144. 2 E.GOPINATH SO ELANGOVAN MAHALINGAM HOUSE,, PALLIMUGAL CHRISTIAN CHURCH,, WORKING AT TMPS, PBVN,, BRAHMAPURAM P.O., ERNAKULAM DISTRICT.682 303. 3 THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE, CO.LTD. ARCADIA 195,, NCPA ROAD, NARIMAN POINT,, MUMBAI-400 001. BY ADV SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, ALONG WITH MACA.1484/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA No.1484/2011 and connected cases 3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 MACA NO. 1550 OF 2011** **AGAINST THE AWARD IN OPMV 847/2003 DATED 31.07.2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THIRUVANANTHAPURAM APPELLANT/1ST RESPONDENT IN CLAIM PETITION:** M/S RELIANCE INDUSTRIES LTD. C/O YARN MARKETING DEPOT., KARAPADA, NEAR NAROLI,, SIVESSA.395 235., UNION TERRITORY OF DADRA &, NAGAR HAVELI. BY ADV SRI.A.KRISHNAN ## **RESPONDENTS/CLAIMANT & RESPONDENTS 2 & 3 IN CLAIM PETITION:** 1 ALIKUNJU.P.K, AGED 60 YEARS, S/O KOCHUMOHAMMED, NADIRA VALLATHAZHATH HOUSE,, NEAR FISHERIES COLLEGE,, KUMBALAM VILLAGE,, ERNAKULAM DISTRICT. 682 506. 2 E.GOPINATH S/O ELANGOVAN, MAHALINGAM HOUSE,, PALLIMUGAL CHRISTIAN CHURCH,, WORKING AT TMPS, PBVN,, BRAHMAPURAM P.O.,ERNAKULAM DISTRICT-682 303. 3 THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE CO.LTD., ARCADIA 195,, NCPA ROAD, NARIMAN POINT P.O., MUMBAI.400 001. BY ADVS. SRI.PATHIRIPALLY S.KRISHNAKUMARI SRI.K.B.RAMANAND SRI.SABU S.KALLARAMOOLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, ALONG WITH MACA.1484/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA No.1484/2011 and connected cases 4** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 MACA NO. 1551 OF 2011** ## **AGAINST THE AWARD IN OPMV 845/2003 DATED 31.07.2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THIRUVANANTHAPURAM APPELLANT/1ST RESPONDENT IN CLAIM PETITION:** M/S RELIANCE INDUSTRIES LTD C/O YARN MARKETING DEPOT., KARAPADA,NEAR NAROLI,, SILVESSA 395 235., UNION TERRITORY OF DADRA & NAGAR HAVELI. BY ADV SRI.A.KRISHNAN ## **RESPONDENTS/CLAIMANT & RESPONDENTS 2 & 3 IN CLAIM PETITION:** 1 N.JAYAKUMAR @ JAYAN. AGED 32 YEARS, S/O NARAYANAN NAIR,, CHAKKOM CHERIYIL HOUSE, AMBIKA MARKET P.O, VECHOOR VILLAGE,, KOTTAYAM DISTRICT. PIN- 686 144. 2 E.GOPINATH SO ELANGOVAN MAHALINGAM HOUSE,, PALLIMUGAL CHRISTIAN CHURCH,, WORKING AT TMPS. PBVN,, BRAHMAPURAM, P.O,, ERNAKULAM DISTRICT. 682 303 3 THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE, CO.LTD. ARCADIA 195,, NCPA ROAD, NARIMAN POINT P.O., MUMBAI 400 001. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, ALONG WITH MACA.1484/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA No.1484/2011 and connected cases 5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 MACA NO. 1552 OF 2011** ## **AGAINST THE AWARD IN OPMV 846/2003 DATED 31.07.2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THIRUVANANTHAPURAM APPELLANT/1ST RESPONDENT IN CLAIM PETITION:** M/S RELIANCE INDUSTRIES LTD. C/O YARN MARKETING DEPOT., KARAPADA, NEAR NAROLI,, SILVESSA. 395 235., UNION TERRITORY OF DARA & NAGAR HAVELI. BY ADV SRI.A.KRISHNAN ## **RESPONDENTS/CLAIMANT & RESPONDENTS 2 & 3 IN CLAIM PETITION:** 1 ANOOP, AGED 29 YEARS, S/O THANKACHAN, ANCHUPARAYIL HOUSE,, VADAYAR P.O,, THALAYOLAPARAMBU,, KOTTAYAM DISTRICT. PIN-686 605 2 E.GOPINATH SO ELANGOVAN MAHALINGAM HOUSE,, PALLIMUGAL CHRISTIAN CHURCH,, WORKING AT TMPS,, PBVN, BRAHMAPURAM, ERNAKULAM DISTRICT. 682 303 3 THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE CO.LTD., ARCADIA 195,, NCPA ROAD, NARIMAN POINT PO,, MUMBAI 400 001. BY ADV SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, ALONG WITH MACA.1484/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA No.1484/2011 and connected cases 6** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 MACA NO. 1553 OF 2011** **AGAINST THE AWARD IN OPMV 844/2003 DATED 31.07.2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THIRUVANANTHAPURAM APPELLANT/1ST RESPONDENT IN CLAIM PETITION:** M/S. RELIANCE INDUSTRIES LTD. MARKETING DEPOT., KARAPADA, NEAR NAROLI,, SILVESSA-395235, UNION TERRITORY OF DADRA &, NAGAR HAVELI. BY ADVS. SRI.A.KRISHNAN SRI.RAHUL D.PANICKER ## **RESPONDENTS/CLAIMANT & RSPPONDENTS 2 & 3 IN CLAIM PETITION:** 1 MOHANAN T., AGED 53 YEARS, S/O. THANKAPPAN, NEDIAMPATT HOUSE, AMBIKA MARKET P.O.,, VECHOOR VILLAGE, VAIKOM,, KOTTAYAM DISTRICT-686 144. 2 E.GOPINATH SO. ELANGOVAN MAHALINGAM HOUSE, PALLIMUGAL CHRISTIAN CHURCH,, WORKING AS TMPS, PBVN, BRAHMAPURAM P.O., ERNAKULAM DISTRICT-682 303. 3 THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE CO. LTD., ARCADIA 195, NCPA ROAD, NARIMAN POINT P.O., MUMBAI-400 001. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, ALONG WITH MACA.1484/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA No.1484/2011 and connected cases 7** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 MACA NO. 1558 OF 2011** ## **AGAINST THE AWARD IN OPMV 849/2003 DATED 31.07.2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THIRUVANANTHAPURAM APPELLANT/1ST RESPONDENT IN CLAIM PETITION:** M/S.RELIANCE INDUSTRIES LTD. C/O.YARN MARKETING DEPOT, KARAPADA,, NEAR NAROLI, SILVESSA, 395235, UNION TERRITORY, OF DADRA & NAGAR HAVELI. BY ADV SRI.A.KRISHNAN ## **RESPONDENTS/CLAIMANT & RESPONDENTS 2 & 3 IN CLAIM PETITION:** 1 SAMAPATHY, AGED 44 YEARS, W/O.(LATE) DINESAN, VIRUTHIYIL,, NIKARTHIL HOUSE, KUDAVACHOOR P.O., KOTTAYAM DISTRICT, PIN-686 144. 2 NISHA D/O.(LATE) DINESAN VIRUTHIYIL, NIKARTHIL HOUSE,, KUDAVACHOOR, KOTTAYAM DISTRICT, PIN-686 144. 3 NIDHEESH S/O.(LATE) DINESAN VIRUTHIYIL, NIKARTHIL HOUSE,, KUDAVACHOOR P.O., KOTTAYAM DISTRICT, PIN-686 144. 4 E.GOPINATH SO.ELANGOVAN MAHALINGAM HOUSE, PALLIMUGAL CHRISTIAN CHURCH,, WORKING AS TMPS, PBVN, BRAHMAPURAM P.O., ERNAKULAM DISTRICT-682 303. 5 THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE CO.LTD.,, ARCADIA 195, NCPA ROAD, NARIMAN POINT P.O.,, MUMBAI-400 001. BY ADV SRI.K.B.RAMANAND THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2021, ALONG WITH MACA.1484/2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA No.1484/2011 and connected cases 8** ## **COMMON JUDGMENT** As these appeals arise out of the common award in O.P.(MV) Nos.844/03, 845/03, 846/03, 847/03, 848/03, 849/03 and 850/03 of the Motor Accidents Claims Tribunal, Thiruvananthapuram, they are being considered by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. Seven persons claiming to be the employees of Sandhya Enterprises, Chennai, a sister concern of the first ‒ respondent M/s.Reliance Industries Limited, filed the above claim petitions under Section 166 of the Motor Vehicles Act, 1988, seeking compensation from the respondents on account of the injuries that they sustained in an accident on 25.02.2003. It was their common case that, while they were travelling in a lorry bearing registration No.DN-09/C-9109, belonging to the first ## **MACA No.1484/2011 and connected cases** **9** respondent, as the representatives of the owner of the goods, when the lorry reached the Kazhakuttom KSEB Sub Station, Ambalathinkara, the lorry capsized due to the ‒ negligence of the second respondent the driver of the lorry. The lorry was insured with the third respondent. All the seven petitioners sustained injuries in the accident. Hence, they are entitled to compensation from the respondents. 3. The second respondent did not contest the proceedings and was set ex-parte. 4. Initially, the respondents one and three – claiming ‒ to be companies under the same umbrella filed joint written statements in the claim petitions, inter alia, refuting the allegations in the claim petitions and contending that the accident occurred due to the negligence of the petitioners because they travelled on the top of a goods carriage vehicle, which was not meant to carry passengers. ## **MACA No.1484/2011 and connected cases** **10** 5. Subsequently, the first and third respondents parted ways and filed additional written statements in all the claim petitions. They took a volte-face from their earlier stand. The first respondent, inter alia, contended that the lorry was used for carrying their goods and the petitioners were their employees, who were accompanying the goods as their authorised representatives. Therefore, the petitioners were not gratuitous passengers as earlier asserted in the joint written statements. It was also contended that there was no legal bar for the petitioners to travel in the lorry, as Ext.B1 policy covers all types of persons. Hence, the third respondent was liable to indemnify the first respondent of their liability. 6. The third respondent filed additional written statements contending that the lorry was a goods carriage vehicle and the same was not authorised to carry passengers. No additional premium was collected from the first respondent to carry passengers. Hence, the third **MACA No.1484/2011 and connected cases 11** respondent was not liable to indemnify the first respondent of any liability arising out of the accident. 7. During the pendency of the proceedings, the petitioner (Dinesan) in O.P.(MV) 849/2003 passed away. His legal representatives got themselves impleaded as supplemental petitioners in the above claim petition. 8. The Tribunal consolidated and jointly tried all the claim petitions. 9. The petitioners produced and marked Exts.A1 to A27 in evidence. The third respondent marked Ext.B1 insurance policy in evidence. 10. The Tribunal, after analysing the pleadings and materials on record, by its common award allowed all the claim petitions by directing the first respondent to pay compensation to all the petitioners. The third respondent was absolved of any liability, on the finding that the petitioners were gratuitous passengers. The Tribunal **MACA No.1484/2011 and connected cases 12** relied on a Full Bench decision of this Court in **Mathew Joseph V. Janaki (2007 (1) KLT 747** ), wherein it is held that gratuitous passengers travelling in a transport vehicle can have coverage only when a comprehensive policy or extended policy has been availed by the owner of the vehicle. 11. Aggrieved by the exoneration of the third respondent, the first respondent has filed the above appeals. 12. Heard; Sri. A. Krishnan, the learned counsel appearing for the appellant/first respondent-owner in all the appeals and Sri. K.B.Ramanand, the learned counsel appearing for the third respondent/insurer in all the appeals. 13. As the appeals are confined to the question whether the third respondent is liable to indemnify the first respondent, service of notice on the respondents one and two in all the appeals (the petitioners and driver) were ## **MACA No.1484/2011 and connected cases** **13** dispensed with, as per order dated 16.11.2011 of this Court. 14. The question that emerges for consideration in these appeals is whether the third respondent is liable to indemnify the appellant of their liability and pay the compensation amount to the petitioners as per the impugned common award. 15. The definite case of the petitioners in all the claim petitions was that they were the employees of a company named Sandhya Enterprises situated at Chennai, which is a sister concern of the appellant/first respondent. The petitioners asserted that, it was as a part of their employment, they as the authorised representatives of the goods, travelled in the lorry. The lorry capsized due to the negligence of the second respondent. 16. Initially, the respondents 1 and 3 contended that the accident happened due to the negligence of the petitioners, who travelled on the top of the lorry. **MACA No.1484/2011 and connected cases 14** 17. Quite surprisingly, on some premonition, the respondents one and three parted ways and both of them filed additional written statements in the claim petitions taking totally contradictory pleas from their earlier assertion. The first respondent then contended that the petitioners were their employees and they were the authorised representatives of the goods, and the petitioners were not strangers or gratuitous passengers, and, therefore, there was no legal bar to carry the petitioners in the goods vehicle. On the contrary, the third respondent contended that the first respondent was not authorised to carrying passengers in a goods carriage vehicle. As no additional premium was collected to carry passengers, the third respondent was not liable to indemnify the petitioners. 18. The petitioners have produced Ext.A3 final report filed by the Kazhakuttam Police in Crime No.74/03, which substantiates that the accident occurred due to the **15** ## **MACA No.1484/2011 and connected cases** negligence of the second respondent. Admittedly, the first respondent was the owner of the lorry, which was covered by Ext.B1 package policy. 19. This Court in **New India Assurance Company Ltd. v. Pazhani Ammal [(2011) (3) KLT 648]** has held that the production of the charge sheet is prima facie sufficient evidence of negligence for the purpose of claim under Section 166 of the Motor Vehicles Act. Charge sheet can be accepted as evidence against the accused driver. If any party does not accept such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet; only then the charge sheet will fall into a pale of insignificance. 20. Admittedly, the respondents have not let it any evidence to discredit the charge sheet. Therefore, it is proved beyond any semblance of doubt that the accident occurred due to the negligence of the second respondent. **MACA No.1484/2011 and connected cases 16** As the first respondent is the owner of the lorry, it is vicariously liable to pay the compensation amount. 21. Now whether the third respondent is to indemnify the first respondent of their liability is the core question. 22. A reading of Ext.B1 insurance policy proves that it is a package policy, which covers only the risk of the driver, goods and the lorry. 23. Undisputedly, no additional premium was paid by the appellant/first respondent to cover the risk of additional passengers in the lorry. Even though the appellant had subsequently asserted in the additional written statements that the petitioners were its employees and were the authorised representatives of its goods, the petitioners have asserted that they were the employees of Sandhya Enterprises, Chennai, a sister company of the appellant. The appellant has not produced any material to substantiate its assertion. Therefore, the petitioners are not the employees of the appellant and are only to be **MACA No.1484/2011 and connected cases 17** treated as gratuitous passengers travelling in a goods vehicle. Moreover, going by the language of Section 147 of the Act, it is doubtful if more than one representative can travel along with the goods. 24. The legal position in the above factual matrix is no longer res-integra in the light of the law laid down by a Division Bench of this Court in **New India Assurance Co.Ltd v. Mohammed Ali** [2013 (4) KLT 822], wherein it is held that merely because the vehicle is covered by a package/comprehensive policy, it will not ipso facto cover the liability of gratuitous passengers carried in all types of vehicles including goods vehicle. The above view has been taken, following the decision of the Honourable Supreme Court in **National Insurance Co.Ltd v. Baljit Kaur** [2004 (1) KLT 938 SC] and a host of other precedents on the point. 25. On a comprehensive re-appreciation of the pleadings and materials on record, the law laid down in **MACA No.1484/2011 and connected cases 18** the aforesaid decisions, I do not find any error in the findings of the Tribunal, absolving the third respondent insurer of their liability and directing the appellant to pay the compensation amount to the petitioners as per the impugned common award. In the result, the appeals are dismissed. The appellant is ordered to pay the compensation amount with interest and cost as per the impugned award to all the petitioners in the claim petitioners within a period of sixty days from today, failing which the Tribunal shall initiate steps to realise the compensation amount as per the common award and disburse the amount to petitioners in accordance with law. The Registry shall forward a copy of this common judgment to the Tribunal for compliance. **Sd/-C.S.DIAS, JUDGE** al/-