MACA Nos. 2860 of 2009 & 616 of 2009 (Subbalakshmi v. Mohammed Nazeer, Jaffer & National Insurance Co. Ltd.)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942 ``` ## **`MACA.No.2860 OF 2009`** ``` AGAINST THE AWARD IN OPMV 1593/2001 DATED 22-02-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD ``` ## **`APPELLANT:`** ``` SUBBALAKSHMI NEAR VIJAYA RICE MILL, KALLEPULLY POST,, PALAKKAD DISTRICT. ``` ``` BY ADV. SRI.A.R.GANGADAS ``` ## **`RESPONDENTS:`** ``` 1MOHAMMED NAZEER S/O SULAIMAN 4/671 VELLOLIPARAMBIL HOUSE,, KALLEPULLY, PALAKKAD. 2JAFFER S/O.ABDUL AZEEZ AMBALAKKADU HOUSE, KALLEPULLY POST,, PALAKKAD. ``` - **`3 NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, 3RD FLOOR EAST FORT COMPLEX,, PALAKKAD.`** ``` R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SMT.T.A.LUXY R3 BY ADV. SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, ALONG WITH MACA.616/2009, MACA.616/2009(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA.No.2860 OF 2009 & MACA.No.616 OF 2009 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942 ``` ## **`MACA.No.616 OF 2009`** ``` AGAINST THE AWARD IN OPMV 1593/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD ``` ## **`APPELLANT:`** ``` NATIONAL INSURANCE COMPANY LTD. PALAKKAD NOW REPRESENTED BY ITS, MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING,, M.G. ROAD, KOCHI -35. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ``` ## **`RESPONDENTS:`** |**`1`**|**`SUBHALAKSHMI`**| |---|---| ||**`W/O VENKATARAMAN`**| ||**`NEAR VIJAYA RICE MILL,`**| ||**`KALLEPULLY P.O.,`**| ||**`PALAKKAD.`**| |**`2`**|**`MOHAMMED NAZEER`**| ||**`S/O. SULAIMAN`**| ||**`4/671, VELLOLIPARAMBIL HOUSE,,`**| ||**`KALLEPULLY P.O.,`**| ||**`PALAKKAD.`**| |**`3`**|**`JAFFER`**| ||**`S/O. ABDUL AZEEZ`**| ||**`AMBALAKKAD HOUSE,`**| ||**`KALLEPULLY P.O.,,`**| ||**`PALAKKAD.`**| ``` R1 BY ADV. SRI.A.R.GANGADAS ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, ALONG WITH MACA.2860/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA.No.2860 OF 2009 & MACA.No.616 OF 2009 ``` ``` 3 ``` ## **P.V.KUNHIKRISHNAN, J** ## **---------------------------------------** **M.A.C.A. No. 2860 of 2009, & M.A.C.A. No. 616 of 2009** **------------------------------------------** Dated this the 3[rd] day of March 2021 ## **JUDGMENT** These appeals are connected and therefore, I am disposing these two appeals by a common judgment. The appellant in M.A.C.A. No. 2860/2009 is the claimant in O.P(M.V) No.1593/2001 on the files of the Motor Accidents Claims Tribunal, palakkad. The appellant in M.A.C.A. No. 616/2019 is the 3[rd] respondent insurer. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) 2. The short facts are like this:- The petitioner was walking along the public road, at pudussery on 28.04.2001 at about 12 a.m. Then the auto rickshaw bearing Registration No. KL.9/F-9106 hit against her and thereby she sustained injuries. She was inpatient in the hospital for 7 days. The accident happened due to the rash and negligent driving of the autorickshaw by the 2[nd] ``` MACA.No.2860 OF 2009 & MACA.No.616 OF 2009 ``` ``` 4 ``` respondent. She contended that, the 1[st] respondent is the owner of the same and the 3[rd] respondent is the insurer, and therefore, they are liable to pay the compensation. Hence, the petition is filed claiming compensation of Rs.1,05,000/- (Rupees One Lakh and Five Thousand Only). 3. Respondent Nos. 1 and 2 have not filed any written statement. Respondent No.3 filed a written statement contending that the petitioner was gratuitous passenger in a goods vehicle. Hence, there is no insurance coverage for her. The compensation amount claimed by the petitioner is highly excessive. The insurer also submitted that the petitioner is not entitled to get compensation as prayed in the claim petition. 4. To substantiate the case, one witness was examined on the side of the petitioner as PW1. Exhibit A1 to A8 were marked on the side of the petitioner. Exhibit B1, B2 and X1 are the respondents' exhibits 5. After going through the evidence and documents, the Tribunal found that the 3[rd] respondent is liable to indemnify the 1[st] respondent, who is owner of the ``` MACA.No.2860 OF 2009 & MACA.No.616 OF 2009 ``` ``` 5 ``` offending vehicle. In other words, the Tribunal found that the 3[rd] respondent is liable to indemnify the 1[st] respondent. The Tribunal also rejected the case of the petitioner that, she was not travelling in the goods Autorickshaw. The Tribunal ordered compensation of Rs. 38,839/- (Thirty Eight Thousand Eight Hundred and Thirty Nine) with interest at the rate of 7.5% p.a. from the date of application till realisation. 6. Aggrieved by the direction of the Tribunal, that the 3[rd] respondent is liable to indemnify the 1[st] respondent, the 3[rd] respondent filed M.A.C.A. No. 616/2008. Aggrieved by the quantum of compensation and other findings, the petitioner filed 2860/2009. 7. Heard the learned counsel for the appellant and the learned counsel for the respondent. 8. The short point to be decided is that whether the finding of the Tribunal that the petitioner was a gratuitous passenger in a goods vehicle is correct. The Tribunal after discussing the entire evidence in detail, concluded that, the petitioner was travelling in the goods ``` MACA.No.2860 OF 2009 & MACA.No.616 OF 2009 ``` ``` 6 ``` autorickshaw. The records of the Police case was also considered by the Tribunal. There is nothing to interfere with the said finding. After finding that he is a gratuitous passenger, the learned counsel for the 3[rd] respondent submitted that the Tribunal erred in directing the 3[rd] respondent to pay the compensation. This is the sum and substance of the argument of the learned counsel. The learned counsel also relied on the judgment of the Apex Court in **United India Insurance Co. v. Suresh [2008(4) KLT 552] and United India Insurance Co. Ltd. v. Tilak Singh [2006 (2) KLT 884 (SC).** In these cases, the Apex Court held that, the gratuitous passenger in a goods vehicle is not covered by the Policy. 9. There is some force in the argument of the learned counsel for the 3[rd] respondent/Insurance Company. In **United India Insurance Co. v. Suresh** ( _supra_ ), the Apex Court considered this point and observed like this:- _“8. Mr. Nandwani, learned counsel appearing on behalf of the appellant_ ``` MACA.No.2860 OF 2009 & MACA.No.616 OF 2009 ``` ``` 7 ``` _would urge that the High Court committed a serious error in passing the impugned judgment in so far as it failed to take into consideration that:_ _1. the vehicle in question being a goods vehicle, the driver could not have allowed anybody to sit by his side._ _2. The Tribunal as also the High Court did not arrive at the finding that the claimant/respondent was the owner of goods particularly when no goods were found to have been carried therein._ _3. On a plain reading of sub clause (i) of Clause (b) of the sub-section 1 of S.147, the words 'carried in the vehicle' must be held to be qualifying "owner of the goods" or "his authorised representative"._ _4. S.147 (b) (i) reads as under:_ _"(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 authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place."_ _5. S.147 provides for mandatory insurance. The policy of insurance in_ ``` MACA.No.2860 OF 2009 & MACA.No.616 OF 2009 ``` ``` 8 ``` _terms of the said provision must be in relation to the person or classes of person specified in the policy sought to be insured. The insurance would be against any liability which the insured incurs._ _12. It is now well settled that the term 'any person' envisaged under the said provision shall not include any gratuitous passenger. (National Insurance Co. Ltd. v. Baljit Kaur 2004 (2) SCC 1)._ _13. If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved.”_ 10. In the light of the dictum laid down by the Apex Court, the gratuitous passenger in a goods vehicle is not entitled coverage of the policy. In such circumstances, the ``` 9 ``` ``` MACA.No.2860 OF 2009 & MACA.No.616 OF 2009 ``` 3[rd] respondent is not liable to indemnify the 1[st] respondent. But in **Manuara Khatun and Others v. Rajesh Kumar Singh and Others [2017 (4) SCC 796],** the Apex Court held that the Insurance Company is liable to pay the compensation and there can be an order allowing the Insurance Company to recover the amount. Such a direction can be issued in this case also. 11. As far as the appeal filed by the claimant is concerned, I perused the impugned award. The Tribunal after considering the entire evidence and documents, found that the appellant is entitled a compensation of Rs. 38,839/- (Thirty Eight Thousand Eight Hundred and Thirty Nine) with interest at the rate of 7.5% p.a. The total compensation claimed by the appellant is Rs.1,05,000/(Rupees One Lakh and Five Thousand Only). The Tribunal after considering all the contentions of the petitioner assessed the compensation. There is no reason to interfere with the quantum of compensation granted by the Tribunal Therefore, these appeals are disposed of, in the following manner:- ``` MACA.No.2860 OF 2009 & MACA.No.616 OF 2009 ``` ``` 10 ``` 1. M.A.C.A. No. 616/2009 is allowed in part. The 3[rd] respondent is directed to pay the compensation ordered as per award dated 22.02.2008 in O.P (M.V) No. 1593/2007 by the Motor Accidents Claims Tribunal, Palakkad. The appellant/the 3[rd] respondent is permitted to recover the above amount from the 1[st] respondent, who is the owner of the vehicle. 2. M.A.C.A No. 2860/2009 is dismissed. All pending applications also dismissed. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** avs The trial court number shown in the 4[th] line of page (10) of the common judgment dated 03.03.2021 in MACA 616/2009 and MACA 2860/2009 is corrected as OP(MV) No. 1593/2001 instead of OP(MV) No. 1593/2007 as per order dated 10/02/2022 in I.A. 1/2021 in MACA 616/2009. **Sd/-** ## **DEPUTY REGISTRAR**