MACA NOS.1670 & 1850 OF 2013

MACA NOS.1670 & 1850 OF 2013 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941** ## **MACA.No. 1850 of 2013** **AGAINST THE AWARD DATED 05-02-2013 IN OPMV 144/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL MUVATTUPUZHA** ## **APPELLANTS:** - **1 REENA RAJESH, W/O.RAJESH, AGED 34 YEARS MUTHIRAKKALAYIL HOUSE,KAKKAD KARA,PIRAVOM VILLAGE,MUVATTUPUZHA TALUK** - **2 GAYATHRI, D/O.LATE RAJESH, AGED 7 YEARS** **REPRESENTED BY HER MOTHER AND NEXT FRIEND REENA RAJESH,W/O.RAJESH,MUTHIRAKKALAYIL HOUSE,KAKKAD KARA,PIRAVOM VILLAGE,MUVATTUPUZHA TALUK** - **3 DAKSHAYANI, W/O.LATE AYYAPPAN, AGED 67 YEARS, MUTHIRAKKALAYIL HOUSE,KAKKAD KARA,PIRAVOM VILLAGE,MUVATTUPUZHA (PETITIONERS IN MACT)** **BY ADVS. SRI.P.M.JOSHI SMT.SIJI K.PAUL SRI.K.T.SAJU** ## **RESPONDENTS:** - **1 THOMAS S/O.CHACKO AGED NOT KNOWN PAPPANASSERIL HOUSE,KARIKKODE KARA,MULAKKULAM VILLAGE,KOTTAYAM DISTRICT 686 610** **2 BIJU MATHEW, S/O. MATHEW AGED NOT KNOWN PUTHENPARAMBIL HOUSE,KARIKKODE KARA,MULAKKULAM VILLAGE,KOTTAYAM DISTRICT 686 610** MACA NOS.1670 & 1850 OF 2013 2 **3 ORIENTAL INSURANCE COMPANY LIMITED MUVATTUPUZHA BRANCH,MUVATTUPUZHA 686 661 (RESPONDENTS IN MACT)** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SMT.PREETHY R. NAIR SRI.ALIAS M.CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, ALONG WITH MACA.1670/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NOS.1670 & 1850 OF 2013 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941** **MACA.No. 1670 of 2013** **AGAINST THE AWARD DATED 05-02-2013 IN OPMV 145/2006 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **APPELLANTS/PETITIONERS :** - **1 JOY SEBASTIAN, S/O.DEVASSIYA NEDUMALAYIL HOUSE, KAKKADU KARA, PIRAVOM VILLAGE MUVATTUPUZHA TALUK.** **2 MARY WO. JOY SEBASTIAN -DO- -DO-** **BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** - **1 THOMAS, S/O.CHACKO PAPPANASSERIL HOUSE, KARIKODU KARA, MULAKULAM VILLAGE, KOTTAYAM DISTRICT - 686 010.** - **2 BIJU MATHEW S/O.MATHEW PUTHENPARAMBIL HOUSE, KARIKODU KARA, MULAKULAM VILLAGE, KOTTAYAM DISTRICT - 686 010** - **3 THE ORIENTAL INSURANCE CO. LTD. MUVATTUPUZHA - 686 661** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SRI.ALIAS M.CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, ALONG WITH MACA.1850/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NOS.1670 & 1850 OF 2013 4 ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **M.A.C.A. Nos.1670 & 1850 of 2013** ## **----------------------------------------------Dated 23[rd] May, 2019.** ## **J U D G M E N T** These appeals are filed by the claimants in two original petitions for compensation before the Motor Accidents Claims Tribunal challenging the common award passed therein. 2. A mini lorry in which one Rajesh and one Jobi N.Joy were carried capsized and they succumbed to the injuries sustained on account of the same. Their legal representatives instituted the proceedings for compensation referred to above under Section 163A of the Motor Vehicles Act 1988 (the Act), against the owner, driver and insurer of the mini lorry. The owner and driver of the mini lorry remained ex-parte in the proceedings. The insurer of the mini lorry, however, contested the claim petitions contending that the deceased who were carried on the platform of the vehicle can be regarded only as gratuitous passengers and they are not covered by the statutory policy issued by the insurer to the owner of the vehicle. The Tribunal found that the deceased being persons carried on the platform of the mini lorry, they can be regarded only as gratuitous passengers not covered by the statutory policy issued by the insurer, and MACA NOS.1670 & 1850 OF 2013 5 consequently dismissed the claim petitions. The claimants are aggrieved by the decision of the Tribunal. 3. Heard the learned counsel for the claimants, the learned counsel for the owner of the vehicle involved in the accident as also the learned counsel for the insurer. 4. The learned counsel for the claimants, placing reliance on the averments made in the claim petitions and the evidence tendered by the witnesses examined on their side as PW1 and PW2, submitted that the mini lorry involved in the accident was carrying election materials of PW1, a contesting candidate of the elections to the Piravom Grama Panchayat. It was also submitted by the counsel that the deceased were engaged by PW1 for unloading the election materials carried in the vehicle and they were travelling in the cabin of the mini lorry. It was contended by the learned counsel that the deceased being persons engaged by PW1 for unloading the election materials carried in the vehicle, they are covered by the statutory policy issued by the insurer. Even otherwise, it was argued by the learned counsel that the deceased who were travelling in the cabin of the vehicle are liable to be treated as the representatives of the owner of the goods carried in the vehicle and they are covered by the statutory policy issued by the insurer in that capacity also. According to the learned counsel, in the circumstances, the Tribunal has acted illegally in exonerating the insurer from the liability to compensate the MACA NOS.1670 & 1850 OF 2013 6 claimants. It was also contended by the learned counsel that at any rate, the Tribunal was not justified in dismissing the claim petitions, for the owner of the vehicle is liable to compensate the claimants, if the insurer is entitled to be exonerated from the liability. 5. The learned counsel for the owner of the vehicle supported the arguments advanced by the learned counsel for the claim petitioners in so far as it relate to the liability of the insurer. 6. The learned counsel for the insurer, placing reliance on the final report submitted by the police in the case registered in connection with the accident, contended that the police, after due investigation, came to the conclusion that the deceased were being carried in the platform of the vehicle and since the claimants have not discredited the final report submitted by the police in the case by examining the investigating officer, the conclusion arrived at in the final report is presumed to be correct and if that be so, the claimants cannot be heard to contend that the deceased were travelling in the cabin of the vehicle. It was also pointed out by the learned counsel that the specific case pleaded by the claimants in the claim petitions is that the deceased were employees engaged by PW1 and the claimants are, therefore, precluded from contending that the diseased were representatives of the owner of the goods carried in the vehicle. It was also contended by the learned counsel that even if it is taken that the deceased were representatives of the owner of the goods carried in MACA NOS.1670 & 1850 OF 2013 7 the vehicle, such persons are expected to travel only in the cabin of the vehicle and in so far as the deceased were travelling on the platform of the vehicle, they are not covered by the statutory policy issued by the insurer. 7. I have considered the arguments raised by the learned counsel on either side. It has come out that PW1 was a candidate in the election to the Piravom Grama Panchayat held during the relevant period. PW1 has deposed before the Tribunal that the vehicle involved in the accident was one hired by him for carrying his election materials; that the deceased were persons engaged by him for supplying the election materials carried in the vehicle at different places and that they were travelling in the cabin of the vehicle. PW2 examined on the side of the claimant has deposed that he along with the deceased were travelling in the vehicle for supply of election materials of PW1 and that the deceased were inside the cabin of the vehicle at the time of accident. The evidence tendered by PW1 and PW2 that the deceased were travelling in the cabin of the vehicle was rejected by the Tribunal. As far as the evidence tendered by PW1 is concerned, the Tribunal found that he being not an eyewitness, his evidence in this regard cannot be accepted. As far as the evidence tendered by PW2 is concerned, the Tribunal found that being contrary to the final report submitted by the Police, the same cannot be accepted. The investigation made by the police in the case registered MACA NOS.1670 & 1850 OF 2013 8 in connection with the accident being an official act, in the absence of any evidence discrediting the conclution arrived at by the police in the said investigation, the Tribunal cannot be found fault with for having rejected the evidence let in by the claimants contrary to the said conclusion. In other words, the finding rendered by the Tribunal that the deceased were travelling on the platform of the goods carriage has to be accepted as correct. The question therefore is as to whether the Tribunal was justified in exonerating the insurer from the liability in such a situation. 8. The vehicle at the relevant time had only a statutory policy. As noted, the case pleaded by the claimants in the claim petitions is that the deceased were persons engaged by PW1 for unloading the election materials carried in the vehicle. PW1 has stated specifically in his evidence that the deceased were engaged by him for wages for placing his boards at different places. In other words, the deceased were the employees of the hirer of the vehicle. In **Sanjeev Kumar Samrat** v. **National Insurance Co. Ltd.** (2013(1) KLT 41), the Apex Court has held that the insurer under a statutory policy is not obliged under law to indemnify the liability in respect of the employees of the hirer of the vehicle. Obviously, it is on account of the above legal position that the claimants have taken up the stand that the deceased were authorised representatives of the hirer of the vehicle. It is seen that since the platform of goods carriages are intended to MACA NOS.1670 & 1850 OF 2013 9 carry goods, in **New India Assurance Co. Ltd.** v. **Alekutty Antony** (2009 (4) KLT 130), this Court has taken the view that the headload workers travelling in the goods vehicle outside the cabin and on the platform cannot be treated as representatives of the owner of the goods in the context of their coverage under Section 147 of the Act. In so far as it is established that the deceased were travelling in the platform of the vehicle, even if they are treated as the authorised representatives of the owner of the goods carried in the vehicle, the insurer cannot be made liable in respect of their death. The Tribunal, in the circumstances, cannot be found fault with for having exonerated the insurer from the liability. 9. There is of course force in the contention taken by the learned counsel for the appellants that the Tribunal ought not have dismissed the claim petitions on the basis of its finding that the insurer is liable to be exonerated. As noted, the claim petitions are filed under Section 163A of the Motor Vehicles Act. In terms of the said provision, the liability to compensate the victims of accident is on the owner of the motor vehicle involved in the accident. Even if it is found that the insurer is liable to be exonerated in terms of the provisions contained in the policy, the owner has the liability to compensate the victims of the accident. According to me, the Tribunal, in the circumstances, should have determined the compensation payable to the claimants under Section 163A of the Act and directed the owner of the vehicle to MACA NOS.1670 & 1850 OF 2013 10 pay the same to the claimants. In so far as the said course has not been adopted by the Tribunal, the matters have to go back to the Tribunal. In the result, the impugned common award is set aside and the claim petitions are remitted to the Tribunal for fresh disposal for the aforesaid limited purpose. **Sd/-** **P.B.SURESH KUMAR** **JUDGE** ## **tgs**