M.A.C.A. Nos. 2619/2008 & 2635/2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2021-03-08
Court Decision / Holding: Appeals dismissed. The Tribunal’s exoneration of the 6th respondent insurance company was upheld; R4 and R5 (owners/drivers) were held jointly and severally liable to pay compensation, while R1–R3 and R6 were exonerated from liability. The quantum of compensation awarded by the Tribunal remained undisturbed.
Final Disposition: Appeals dismissed.

Parties to the Case

Appellants / Petitioners

A. Razim (minor)
Rizana

Respondents

C. Balakrishnan
Ravi S. Palaniappan
United India Insurance Co. Ltd. (2 occurrences)
P. Abdul Gafoor
A. Abdul Rahiman
United India Insurance Co. Ltd. (another office)

Legal Representation & Advocates

Counsels for Petitioners

• Dinesh Mathew J. Muricken
• P. V. Balakrishnan
• T. P. Ramesh (Thekkumthala)

Counsels for Respondents

• P. V. Jyothi Prasad

Case Synopsis & Summary

These two Motor Accident Claims Appeals arise from awards made by the Motor Accidents Claims Tribunal, Manjeri, in O.P.(MV) Nos. 314/2004 and 315/2004, both disposed by a common order. On 26 May 2002, at about 3 p.m., a car (Reg. KA-25M-2769) and a tempo (Reg. TN-09-F-5757) collided near the Bison View Point on the Masinagudi–Ooty road as they proceeded from Ooty to Nilambur. The petitioners sustained injuries and claimed compensation against several respondents, contending that the accident was due to rash and negligent driving by the tempo driver and that the respondents are jointly and severally liable. The Tribunal framed issues and found the tempo driver (2nd respondent) negligent; it awarded separate compensation in both petitions. However, it exonerated the 6th respondent, United India Insurance Co. Ltd., concluding the policy was a “liability only” policy for a private car and that no additional premium had been paid for gratuitous passengers; relying on United India Insurance Co. v. Thilak Singh (SC) (2006 (2) KLT 884). The claimants challenged this exoneration. The High Court, in a common judgment by P.V. Kunhikrishnan, J., refused to interfere, upholding the Tribunal’s finding and dismissing the appeals. It reiterated that gratuitous passengers in a private vehicle fall outside liability-only policy coverage, citing Asha Rani, and left the quantum intact.

Provisions of Law Cited

Section 279 r/w 338 IPC

Legal Doctrines & Maxims

Gratuitous passenger doctrine
Liability-only policy does not cover gratuitous passengers

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the Tribunal’s exoneration of the 6th respondent-insurer from liability was erroneous. They argued that compensation should be payable by the insurer in the light of the car–tempo collision, the involvement of the private car, and the fact that the accident arose from rash and negligent driving. They asserted that the policy coverage or lack thereof should not defeat the claim, and that the tribunal’s reliance on a liability-only policy and gratuities to gratuitous passengers misapplied the law.

Contentions of Respondents

The respondents urged that the policy in question was a liability-only policy for a private car and that no additional premium was paid to cover gratuitous passengers. Relying on the Supreme Court decision in United India Insurance Co. v. Thilak Singh, they argued that the insurer owed no liability. They maintained that the Tribunal correctly exonerated the insurer and held the owner and driver primarily liable.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
United India Insurance Co., Ltd. v. Thilak Singh	2006 (2) KLT 884 (SC)	Positive	Cited and relied upon to support the insurer’s non-liability under a liability-only policy for gratuitous passengers.
Asha Rani case	2003 (1) KLT 165-(2003)2 SCC	Positive	Cited to apply observations on gratuitous passengers to the present context, reinforcing non-coverage under a liability-only policy.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** ## **MACA.No.2619 OF 2008** **AGAINST THE AWARD IN OPMV 315/2004 DATED 27-06-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** **APPELLANT/PETITIONER IN M.V.O.P:** **A.RAZIM(MINOR, AGED 11 YEARS, REPRESENTED REPRESENTED BY MOTHER & GUARDIAN RIZANA,, W/O.ABDUL RAHIMAN, ATHIKKAL HOUSE,, P.O.EDAVANNA.** **BY ADVS.** **SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN SRI.T.P.RAMESH (THEKKUMTHALA)** ## **RESPONDENTS/RESPONDENTS IN M.V.O.P.:** - **1 C.BALAKRISHNAN,S/O.CHINNAPPAN, DOOR NO.58, NEW NO.23, MUTHALITHOTTAM,, PERIYA SEMUR, ERODE.** - **2 RAVI SO.PALANIAPPAN 26 N.G.O.COLONY ERODE.** - **3 UNITED INDIA INSURANCE CO. LTD. 1176 METTUR ROAD, 11TH FLOOR, MUTHIAH COMPLEX,, ERODE.** - **4 P.ABDUL GAFOOR SO.ALAVI HAJI C/O.MOHAMMED, DOOR NO.168, LIG, UDAYAGIRI,, MYSORE19.** - **5 A.ABDUL RAHIMAN SO.A.ABOOBACKER P.O.EDAVANNA.** - **6 UNITED INDIA INSURANCE CO. LTD. A.M.BUILDING, P.B.NO.5, HOSPITAL ROAD,, NILAMBUR.** **R1 BY ADV. SRI.P.V.JYOTHI PRASAD** ## **OTHER PRESENT:** ## **SRI.P.K.MANOJKUMAR, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, ALONG WITH MACA.2635/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 M.A.C.A.Nos2619/2008 & 2635/2008 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** ## **MACA.No.2635 OF 2008** **AGAINST THE AWARD IN OPMV 314/2004 DATED 27.06.2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI** **APPELLANT/PETITIONER IN M.V.O.P.: RIZANA, AGED 36 YEARS, W/O.ABDUL RAHIMAN, ATHIKKAL HOUSE, P.O.EDAVANNA,, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN SRI.T.P.RAMESH (THEKKUMTHALA)** - **RESPONDENTS/RESPONDENTS IN M.V.O.P: 1 C.BALAKRISHNAN, S/O.CHINNAPPAN, DOOR NO.58 NEW NO.23,MUTHALITHOTTAM,, PERIYA SEMUR,ERODE.** - **2 RAVI SO.PALANIAPPAN 26 NGO COLONY ERODE.** - **3 UNITED INDIA INSURANCE CO.LTD 1176 METTUR ROAD, IIND FLOOR, MUTHIAH COMPLEX, ERODE.** - **4 P.ABDUL GAFOOR SO.ALAVI HAJI C/O.MOHAMMED, DOOR NO.168,LIG,, UDAYAGIRI, MYSORE19.** - **5 A.ABDUL RAHIMAN, S/O.A.ABOOBACKER P.O.EDAVANNA,** - **6 UNITED INDIA INSURANCE CO.LTD.A.M. BUILDING, P.B.NO.5, HOSPITAL ROAD, NILAMBUR. R1 BY ADV. SRI.P.V.JYOTHI PRASAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, ALONG WITH MACA.2619/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 M.A.C.A.Nos2619/2008 & 2635/2008 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------- M.A.C.A.Nos. 2619/2008 & 2635/2008 ------------------------------Dated this the 8[th] day of March, 2021 ## **JUDGMENT** These two appeals are filed by the claimants in O.P.(MV) No.314/2004 and 315/2004 on the file of the Motor Accidents Claims Tribunal, Manjeri. Both these cases were disposed by the Tribunal by a common order. Therefore, I am disposing these two appeals by a common judgment. 2. The short facts are like this: on 26.05.2002 at about 3 p.m., while the petitioners were travelling in a car bearing Reg. No. KA-25M-2769 from Ooty to Nilambur. The vehicle reached Bison view point on the Masinagudi-Ooty road. At that time a tempo bearing registration No.T.N.09-F-5757 came from opposite side and dashed against the Car in which the claimants were travelling. As a result of the accident, the claimants sustained injuries and they filed these two claim petitions alleging that the 4 accident was occurred due to the rash and negligent driving of the second respondent. According to the claimants, all the respondents are jointly and severally liable to pay compensation to the petitioners. 3. To substantiate the case, Exts.A1 to A9 were marked on the side of the petitioners. Ext.B1 is the copy of the policy certificate. The above documents are marked in O.P.(MV) No.314/2004 and in O.P.(MV) No.315/04, Exts.A1 to A5 and Ext.B1, the copy of the policy certificate is separately marked. The following issues were framed by the Tribunal. “a. Whether the 2[nd] or 5[th] respondent was rash and negligent in causing the accident. b. Whether the petitioners are entitled to any compensation ? If so, what is the quantum ? c. Who is liable to pay the compensation ? “ 4. As far as the first issue is concerned, the Tribunal found that the fifth respondent was negligent which resulted to the accident. Separate compensation was also awarded in both the claim petitions. As far as issue No.c is concerned, the Tribunal found that 6[th] respondent Insurance company is not liable to pay the compensation and they were exonerated from liability. It 5 is ordered that the respondent Nos. 4 & 5 are jointly and severally liable to pay the compensation. Respondent Nos. 1 to 3 and 6 were exonerated from the liability in both the claim petitions. 5. The claimants in both the claim petitions are mainly aggrieved by the above finding of the Tribunal by which, the insurance company is exonerated. This is the only contention raised by the appellant in these two appeals. 6. Heard the counsel for the appellant and the counsel for the respondent Insurance Company. 7. The only point to be decided is whether the exoneration of 6[th] respondent Insurance company from paying compensation amount is correct or not. The Tribunal after considering the available evidence and perusing Ext.B1 policy, found that it is a 'Liability only' policy and the vehicle was a private car. The Tribunal after considering the policy, found that no additional premium is seen paid by the 4[th] respondent, the owner of the vehicle. Therefore, relying the judgment of the Apex Court in **United India Insurance Company v. Thilak Singh (2006 (2) KLT 884 (SC)** the Tribunal found that the insurance company is not liable to pay the compensation and they were 6 ## exonerated. The relevant portion of the impugned Award is extracted hereunder: “8. Issue No.3:- The learned counsel for the petitioner in the petitions submitted that the accident was occurred only due to the rash and negligent driving by R2 the driver of the Tempo Traveler bearing Reg. No.T/N 09 F 5757. But the judgment produced in the connected case No.311/04 and 312/04 by the petitioner in CC. No.3704 of 2002, Judicial Magistrate, Ootacamund revealed that R5 the driver of the Maruthi Zen car bearing Reg. No. KA 25 M 2769 was rash and negligent in causing the accident and the policy was charged against him u/s 279 r/w 338 IPC. R5 the driver was rash and negligent in causing the accident and therefore he is primarily liable. R4 the owner of the vehicle is vicariously liable. Herein the vehicle was a private car involved in the accident. Hence the petitioners are gratuitous passengers in private vehicle. Ext.B1 shows that the policy is a 'Liability only' policy and the vehicle was a private car. No additional premium is seen paid by the 4[th] respondent the owner for gratuitous passenger. Thus the policy is not covering the gratuitous passengers in the private vehicle. In 2006(2) KLT 884 (SC) United India Insurance Co., Ltd. V. Thilak Singh) the Apex Court held that: “Although the observations made in Asha Rani case 2003 (1) KLT 165-(2003)2 SCC 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 7 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. In the light of the above Hon'ble Supreme Court's decision, R6 the Insurance Company is exonerated from the liability. R4 and R5 are jointly and severally liable to compensate the petitioners. R1 to R3 and R6 are exonerated from the liability in both petitions.” 8. I see no reason to interfere with the above finding of the Tribunal. Even though the counsel for the appellant submitted that the amount of compensation awarded by the Tribunal is too low. I think there is nothing to interfere with the amount awarded by the Tribunal. I perused the impugned award and also the amount paid to the appellant on different heads. I think the amount already awarded by the Tribunal is a just and reasonable compensation. Notice was issued by this Court to Respondent Nos.4 &5. Since the notice was not able to serve, paper publication was done and thereafter, service was completed. . Considering the entire facts and circumstances, I think there is nothing to interfere with the compensation already awarded by the Tribunal. The Tribunal after perusing the policy and 8 considering the legal position, exonerated the insurance company. The Tribunal also relied on the decision of the Apex Court also in this regard, I see no reason to interfere with the finding of the Tribunal. These appeals are dismissed. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** al/-