MACA Nos. 1239/2011, 1308/2011, 1348/2011, 1367/2011 and 2753/2012 v. C. Sreedharan, Mahesh M.R., National Insurance Co. Ltd., and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.1239 OF 2011** **AGAINST THE AWARD IN OPMV 914/2004 DATED 05-08-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT/PETITIONER:** **E.SAJIL, S/O NARAYANAN, ASHA NIVAS, CHALA WEST, THOTTADA.P.O.,, KANNUR DISTRICT.** **BY ADVS. SRI.M.V.AMARESAN SRI.K.REGHUNATHAN** ## **RESPONDENTS/RESPONDENTS:** **1 C.SREEDHARAN, S/O II/658, RIPPAN ESTATE QUARTERS, MEPPADI.P.O., WAYANAD DISTRICT-673577. 2 MAHESH.M.R. S/O. MUKUNDAN ERAYI HOUSE, CHALA WEST, P.O.THOTTADA,, KANNUR DISTRICT-670007. 3 NATIONAL INSURANCE CO.LTD. BANK ROAD, KANNUR DISTRICT. PIN-670001.** **R1 BY ADV. SRI. M.A. GEORGE R1 BY ADV. SRI.C.P.PEETHAMBARANBONO MEMO R1 BY ADV. SMT.RAJI T.BHASKAR R2 BY ADV. SRI.C.P.PEETHAMBARAN(B/O,NO MEMO)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021, ALONG WITH MACA.1308/2011, MACA.1348/2011, MACA.1367/2011, MACA.2753/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.1308 OF 2011** **AGAINST THE AWARD IN OPMV 985/2004 DATED 05-08-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT/PETITIONER:** **SHILPA, W/O MAHESH, AGED 28 YEARS, ERAYI HOUSE, CHALA WEST, P.O.THOTTADA,, KANNUR DISTRICT.** **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENTS/RESPONDENTS:** **1 C.SREEDHARAN, S/O T.SUKUMARAN NAIR, II/656, RIPPAN ESTATE QUARTERS, MEPPADI P.O.,, WAYANAD DISTRICT, PIN-673 577. 2 MAHESH M.R. S/O. MUKUNDAN ERAYI HOUSE, CHALA WEST, P.O.THOTTADA,, KANNUR DISTRICT, PIN-670 007. 3 NATIONAL INSURANCE CO. LTD. BANK ROAD, KANNUR DISTRICT-670 001.** **R1 BY ADV. SRI C. P.PEETHAMBARAN BY ORDER R1 BY ADV. SRI. M.A. GEORGE R1 BY ADV. SMT.RAJI T.BHASKAR R2 BY ADV. SRI C. P.PEETHAMBARAN (BY ORDER) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021, ALONG WITH MACA.1239/2011, MACA.1348/2011, MACA.1367/2011, MACA.2753/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.1348 OF 2011** **AGAINST THE AWARD IN OPMV 1367/2005 DATED 05-08-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT/PETITIONER:** **E.JISHA, D/O NARAYANAN, AGED 32 YEARS, ASHA NIVAS, CHALA WEST,, P.O.THOTTADA, KANNUR DISTRICT.** **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**C.SREEDHARAN,**| |---|---| ||**S/O.T.SUKUMARAN NAIR, 11/658, ESTATE QUARTERS,,**| ||**MEPPADI.P.O., WAYANAD DISTRICT. PIN-673 577.**| |**2**|**MAHESH.M.R. S/O.MUKUNDAN**| ||**ERAYI HOUSE, CHALA WEST, P.O.THOTTADA,, KANNUR**| ||**DISTRICT, PIN-670 007.**| |**3**|**NATIONAL INSURANCE CO.LTD.**| ||**BANK ROAD, KANNUR DISTRICT., PIN-670 001.**| ||**R1 BY ADV. SRI C.P PEETHAMBARAN BY ORDER**| ||**R1 BY ADV. SRI. M.A. GEORGE**| ||**R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA**| ||**R1 BY ADV. SMT.RAJI T.BHASKAR**| ||**R2 BY ADV. SRI C.P PEETHAMBARAN (BY ORDER)**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021, ALONG WITH MACA.1239/2011, MACA.1308/2011, MACA.1367/2011, MACA.2753/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** **MACA.No.1367 OF 2011** **AGAINST THE AWARD IN OPMV 946/2004 DATED 05-08-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANTS/PETITIONERS:** |**1**|**E. SHAJIL, AGED 39 YEARS,S/O NARAYANAN, ASHA NIVAS,**| |---|---| ||**CHALA WEST,, P.O.THOTTADA, KANNUR DISTRICT.**| |**2**|**ARUNIMNA AGED 9 YEARS MINOR**| ||**S/O. E.SHAJIL, REP. BY 1ST APPELLANT.**| |**3**|**P.KANNAKARAN S/O. KANNAN, AGED 74 YRS**| ||**KARUNA NIVAS, MUNDERI AMSOM, EACHER DESOM.**| |**4**|**K.P.VIJAYALAKSHMI, D/O. MANDAN**| ||**AGED 68 YEARS, KARUNA NIVAS, MUNDERI AMSOM,, EACHER**| ||**DESOM.**| ||**BY ADV. SRI.M.V.AMARESAN**| |**ENT/S**<br>**:**|| |**1**|**C. SREEDHARAN , S/O T SUKUMARAN NAIR**| ||**II/658, RIPPAN ESTATE QUARTERS, MEPPADI P.O.,, WAYANAD**| ||**DISTRICT, PIN-673 577.**| |**2**|**MAHESH M.R. S/O. MUKUNDAN**| ||**ERAYI HOUSE, CHALA WEST, P.O.THOTTADA,, KANNUR DISTRICT,**| ||**PIN-670 007.**| |**3**|**NATIONAL INSURANCE CO. LTD.**| ||**BANK ROAD, KANNUR DISTRICT, PIN-670 001.**| ||**R1 BY ADV. SRI. M.A. GEORGE**| ||**R1 BY ADV. SRI.C.P.PEETHAMBARAN BO NO MEMO**| ||**R1 BY ADV. SMT.RAJI T.BHASKAR**| ||**R2 BY ADV. SRI.C.P.PEETHAMBARAN (B/O) (NO MEMO)**| ## **RESPONDENT/S:** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021, ALONG WITH MACA.1239/2011, MACA.1308/2011, MACA.1348/2011, MACA.2753/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943** ## **MACA.No.2753 OF 2012** **AGAINST THE AWARD IN OPMV 946/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY** ## **APPELLANT/2ND RESPONDENT:** **MAHESH M.R. S/O MUKUNDAN, ERAYI HOUSE, CHALA WEST, P.O. THOTTADA, KANNUR DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MUKUNDAN B., S/O. BAPPU.AGED 69 YEARS** **BY ADVS. SRI.C.P.PEETHAMBARAN SMT.MINI.V.A.** ## **RESPONDENTS/PETITIONERS AND 1ST AND 3RD RESPONDENTS:** **1 E.SHAJIL AGED 39 YEARS S/O. NARAYANAN, ASHA NIVAS, CHALA WEST, THOTTADA P.O., KANNUR DISTRICT. 670007 2 ARUNIMA AGED 11 YEARS D/O. E.SHAJIL, (MINOR), REPRESENTED BY HER FATHER AND NEXT FRIEND E.SHAJIL, ASHA NIVAS, CHALA WEST, THOTTADA P.O., KANNUR DISTRICT. 670007 3 P.K.KARUNAKARAN AGED 74 YEARS S/O. KANNAN, KARATIA NIVAS, MUNDERI AMSOM, KANNUR DISTRICT. 670701** - **4 K.P.VIJAYALAKSHMI, S/O KANNAN, AGED 74 YEARS, KARATIA NIVAS, MUNDERI AMSOM, KANNUR DISTIRCT. 670704** - ***5 C.SREEDHARAN (DELETED) S/O. T.KUMARAN NAIR, II/658, RIPPAN ESTATE QUARTERS, MEPPADI P.O., WAYANAD DISTRICT. 673577** **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **6** **(RESPONDENT NO 5 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF APPELLANT VIDE ORDER DATED 01/08/2013 IN IA 2027/2013 IN MACA 2753/2012)** **6 NATIONAL INSURANCE COMPANY LTD. BANK ROAD, KANNUR.670001** **R1 BY ADV. SRI.M.V.AMARESAN R1 BY ADV. SRI.V.N.RAMESAN NAMBISAN R1 BY ADV. SMT.RAJI T.BHASKAR** ## **OTHER PRESENT:** **SMT.RAJI.T.BHASKAR, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2021, ALONG WITH MACA.1239/2011, MACA.1308/2011, MACA.1348/2011, MACA.1367/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **7** **P.V.KUNHIKRISHNAN, J** **-----------------------------------------------------------M.A.C.A. Nos.1239, 1308, 1348, 1367 of 2011 and MACA No. 2753 of2012 --------------------------------------------------------Dated this the 30[th] day of March, 2021** ## **JUDGMENT** These five appeals are connected and therefore, I am disposing these five appeals by a common judgment. M.A.C.A. No.1239, 1308, 1348 and 1367 of 2011 were filed by the claimants/petitioners in O.P.(M.V.) Nos.914/2004, 985/2004, 1367/2005 and 946/2004 respectively. M.A.C.A.2753/2012 is filed by the second respondent in O.P.(MV) No.946/2004.(Hereinafter, the parties are mentioned in accordance to their rank before the Tribunal). 2. The petitioners in O.P.(MV)No.946/2004 on the file of the Motor Accidents Claims Tribunal, Thalassery are the legal heirs of deceased Sheena. The petitioner in O.P.(M.V.) Nos.914/2004, 985/2004 and 1367/2004 are the injured. The deceased in O.P.(M.V.) No.946/2004 and the petitioners in all other cases herein were travelling in a Maruti Car bearing registration No.KL-13/A 4888 on 10.10.2003. The car was driven by the 2[nd] respondent at the time of the accident. According to **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **8** the petitioners, when the above car reached near Ayanikkad Mosque, at about 1.30 am, on 10.10.2003, it hit against the backside of a stationary lorry bearing registration No.KL-13 / E 5081 which was parked on the side of the road. According to the petitioners, the accident happened because of the rash and negligent driving by the 2[nd] respondent, who was driving the Maruti car. The petitioners claimed compensation from respondent Nos. 1 to 3, who are the owner, driver and insurer of the Maruti Car. All the claim petitions were considered by the Tribunal together and a common award is passed. 3. To substantiate the case, Exts.A1 to A28 were marked on the side of the petitioners. The petitioner in O.P.(M.V.) No.914/2004 was examined as PW1. Ext. B1 Insurance policy was marked on the side of the respondent. After going through the evidence and the documents, the Tribunal found that the deceased and other passengers in the car were gratuitous passengers and therefore, the 3[rd] respondent is not liable to pay the compensation. The Tribunal fixed the compensation in all the cases separately. Thereafter, the respondent Nos. 1 and 2 are directed to pay the compensation amount jointly and severally with interest at the rate of 7.5% per annum. Aggrieved by the **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **9** above award, the claimants in O.P.(M.V.) Nos. 914/2004, 985/2004, 1367/2004 and 946/2004 filed MACA Nos. 1239/2011, 1308/2011, 1348/2011 and 1367/2011. The 2[nd] respondent, who is the driver of the Maruti Car filed MACA Nos. 2753/20012 challenging the award dated 5.8.2010 in O.P.(M.V.) No.946/2004. 4. Heard counsel for the petitioners and counsel for the 2[nd] respondent. I also heard the counsel for the 3[rd] respondent. 5. The counsel for the petitioners submitted that the finding of the Tribunal that passengers in the car were gratuitous passengers is incorrect. According to the counsel, PW1 had deposed before the Tribunal that the vehicle was taken on rent from the 1[st] respondent, owner of the car and therefore, the injured and the deceased were not gratuitous passengers. The counsel also submitted that Ext.B1 policy produced by the Insurance Company is not an “Act only policy”. The counsel relied the judgment of the Apex Court in **National Insurance Company Ltd. v. Balakrishnan and anr.** [2012 KHC 4663] in which the Apex Court observed like this : “21. In view of the aforesaid factual position, there is no scintilla of doubt that a "comprehensive / package policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act Policy" stands on a different footing from a "Comprehensive / Package Policy". As the **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **10** circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "Comprehensive / Package Policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act Policy" which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a "Comprehensive / Package Policy", the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same. 22. In view of the aforesaid legal position, the question that emerges for consideration is whether in the case at hand, the policy is an "Act Policy" or "Comprehensive / Package Policy". There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us, Annexure P -1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a "comprehensive policy" but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a "package policy" to cover the liability of an occupant in a car.” 6. The counsel submitted that Ext.B1 is not an “Act only policy” and the Tribunal has not considered the same in detail in the light of the above decision. The counsel for the 2[nd] respondent also endorsed the arguments of the petitioners and contended that the 2[nd] respondent is not liable to pay the amount. According to him, the vehicle was taken on rent and therefore, the passengers in the car are not the gratuitous passengers. In this case, there is only the oral evidence of PW1 who is the petitioner in O.P.(M.V.) No.914/2004 and one of the **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **11** claimant in O.P.(M.V.) No. 946/2004. According to PW1, the vehicle was taken on rent from the owner. But except the oral evidence adduced by PW1, there is no other evidence to support that case. In such circumstances, the Tribunal found that the contention of the petitioners cannot be accepted. The finding of the Tribunal on this aspect is extracted hereunder : “34. The learned counsel for the 3[rd] respondent argued that the petitioners are attempting to convert their status as paid passengers in the car. Here PW1 deposed that, they travelled in the above car by paying rent. But no where in the petition, the petitioners has such a case. But such an evidence was given with a view to exclude the petitioners from the purview of gratuitous passengers. Her the mere deposition of PW1 is the only piece of evidence to show that the petitioners were travelled in the above Maruthi car as a Taxi. But no other reliable evidence is available to substantiate the above contention. It is argued by the learned counsel for the 3[rd] respondent that such a contention need not be looked in this particular case, since the petitioners used the car as a private car for a private trip of them. That is to say the petitioner in OP (M.V.) No. 985/04 Shilpa is the wife of the 2[nd] respondent Mahesh, the driver of the above Maruthi Car. It appears to be true from the cause title of the above petition as it is stated therein as Shilpa wife of Mahesh. 35. Here an important question arose is whether the travellers in a private car where in passengers are not permitted to be travelled for hire or reward, if carried, can them be excluded from the purview of gratuitous passengers ? I am of the view that such persons cannot be excluded from the purview of gratuitous passengers, so as to put an additional burden on insurance companies to indemnify the insured for which no premium actually paid to cover the risk of gratuitous passengers. In other words the travellers in a private car can only be treated as gratuitous passengers, since nobody is permitted to travel in a private car as a paid passenger. A vehicle is categorised as a private car with the above view by applying the wisdom of the legislature with such an intent. If otherwise there is no need for any such classifications. Moreover the payment of tax in respect of a private vehicle is very very meager when compared to vehicles provided with Taxi and tourist permits. So there are so many persons in the society having vehicles with Taxi and tourist **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **12** permits obtained the same by paying huge taxes to the Revenue of Government. They have been obtaining such permits by paying huge amount as tax so as to use the vehicle for taxi and tourist purposes. If a private car is allowed to use as Taxi or a tourist vehicle as part of paid service, the same can be treated as a gross irregularity and illegality. So the interpretation of a provision of law will never be a paradigm message to the society as a whole to legalise an act otherwise illegal. So I am of the view that the petitioners herein can only be treated as gratuitous passengers in a private vehicle and are not covered by any “Act only Policy”. 36. In view of my above observation the liability of the company on the ground that the petitioners are paid passengers need not be considered. But for completion and as part of recording the arguments tendered by both sides the following discussion is also made. The learned counsel for the 3[rd] respondent argued that, if a vehicle is used for other purposes, the company has no liability at all. He relied on a ruling reported in 2006 ACJ 238 of the Hon'ble High Court of Calcutta, in support of his contentions. The dictum laid down therein is reproduced as such :- Motor Vehicles Act, 1988, section 149(2) (a)(i)(a) – Motor insurance – Policy – Breach of -Passenger carried for hire in private vehicle – Liability of insurance company – Contention of insurance company that vehicle insured for private purpose was used for carrying passengers on hire – Certificate of insurance specifically prohibits the use of vehicle for carrying passengers for hire or reward – Evidence that victim was travelling in the offending vehicle upon payment of fare -whether there was breach of specified condition of policy and insurance company is absolved from its liability – Held : yes ; owner alone is liable. 37. On a perusal of Ext.B1 policy page No.2, there is specific exclusion of certain categories of use from coverage. The 1[st] one is 1) hire or reward. The rest of the exclusions need not be discussed herein. So Ext. B1 policy has no coverage if the vehicle is used for hire or reward. So even though the feeble evidence tendered by the petitioners to prove that they were travelling in the vehicle as hired passengers then also their liability is not covered under the policy. 38. The attempt of the learned counsel for the petitioners so as to fix liability on the strength of an 'Act only Policy' to gratuitous passengers in a private vehicle, cannot be accepted view of the settled preposition of the Hon'ble Supreme Court in Thilak Sings case 2006 (2) KLT 884. Therefore I am of the view that the insurance company cannot be fastened with liabilities, for which **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **13** no premium was paid. Therefore, I exonerate the insurance company in this case from liability.” 7. I see no reason to interfere with the above finding of the Tribunal. But the counsel for the petitioner submitted that he will be able to establish that the vehicle was taken on rent from the owner of the car, if an opportunity is given to adduce further evidence. The counsel for the 2[nd] respondent also submitted that he will also adduce evidence to prove the same. If the passengers in the car are not gratuitous passengers, probably the Insurance Company may be liable to pay the compensation. But from the available evidence, the Tribunal rightly exonerated the Insurance Company. But, I think an opportunity can be given to the petitioners to adduce further evidence. The counsel for the petitioners also contended that he has got a grievance that the compensation awarded by the Tribunal is insufficient. That question is also left open. The petitioners are allowed to adduce further evidence before the Tribunal for enhanced compensation. The Tribunal need not interfere with the compensation already awarded by the Tribunal. 8. Therefore, these appeals are disposed in the following manner : - 1) MACA Nos.1239, 1308, 1348, 1367 of 2011 and 2753 of 2012 are **MACA.Nos.1239, 1308,1348,1367/11 & 2753 OF 2012** **14** allowed. - 2) The impugned awards are set aside. - 3) The Motor Accidents Claims Tribunal, Thalassery is directed to restore all the claim petitions into file. - 4) The Tribunal will allow the petitioners and the respondents to adduce further oral and documentary evidence, if any. I make it clear that no denova trial is necessary. - 5) After giving opportunity to adduce further evidence and after hearing both sides, the Tribunal will dispose all these claim petitions as expeditiously as possible, at any rate, within 6 months from the date of receipt of a copy of this judgment. - 6) The parties will appear before the Tribunal on 3.5.2021. SD/- **P.V. KUNHIKRISHNAN JUDGE** SKS