National Insurance Co. Ltd. v. Sather, T.K. Moosankutty, Raghavan and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 MACA NO. 2888 OF 2014 ``` ``` AGAINST THE AWARD DATED 09.04.2014 IN O.P(M.V) NO.1416 OF 2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY APPELLANT/RESPONDENT NO.3: ``` ``` THE NATIONAL INSURANCE CO.LTD DIVISIONAL OFFICE, THANA P.O., KANNUR DISTRICT, KERALA, REPRESENTED BY ITS MANAGER. ``` ``` BY ADVS. SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA ``` ``` RESPONDENTS / APPELLANTS 1 TO 4 AND RESPONDENTS NO.1, 2 AND ``` ``` 4 TO 7: ``` ``` 1SATHER S/O.HAMEED, VALIYAPEEDIKAYIL HOUSE, PAPPINISSERI WEST, P.O.PAPPINISSERI AMSOM, KANNUR DISTRICT. 2T.K.MOOSANKUTTY S/O.MIOIDU, T.K.HOUSE, P.O.VALAPATTANAM, KANNUR DISTRICT, KERALA. 3RAGHAVAN S/O.KUNHAMBU, CHUNGAKKARAN HOUSE, NEAR K.V.SMARAKAM, P.O.KALLIYASSERI, KANNUR DISTRICT. ``` ``` BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.CIBI THOMAS SRI.U.P.BALAKRISHNAN ``` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP`** ``` FOR HEARING ON 30.11.2023 AND THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING: ``` M.A.C.A. No. 2888 of 2014 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 2888 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of March, 2024 ## **JUDGMENT** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Thalassery (for short, ‘the Tribunal’) on 09.04.2014 in O.P(M.V) No.1416 of 2005. The appellant is the 3[rd] respondent, who was none other than the insurer of a lorry bearing Registration No.KRC/2799, which is the allegedly offending vehicle. Original Petition No.1416/2005 was filed by the 1[st] respondent in the appeal before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the M.V Act’) seeking `5,00,000/- as compensation. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3, in accordance with their status in the Original Petition. 3. It was alleged by the petitioner in the Original Petition that the lorry bearing Registration No.KRC/2799 in which he was travelling overturned in front of a toddy shop situated near M.A.C.A. No. 2888 of 2014 -:3:- Kannapuram, due to the rash and negligent driving by its driver and thereby, he sustained serious injuries. Claiming a sum of `5,00,000/- as compensation, the above Original Petition was filed before the Tribunal, against the driver, the owner and the insurer of the lorry at the relevant time of the motor accident. The motor accident was alleged as occurred due to the rash and negligent driving of the lorry by it’s driver shown as 2[nd] respondent in the Original Petition. 4. Respondents were served with notice from the Tribunal but 1[st] and 2[nd] respondents did not turn up to contest the Original Petition despite service of notice on them and therefore, were declared _ex parte_ by the Tribunal. 3[rd] respondent filed written statement admitting issuance of a certificate of insurance for the lorry bearing Registration No.KRC/2799 covering the date of the motor accident. It was contended that the vehicle involved in the motor accident was a goods carriage and the certificate of insurance issued being an Act only one, the risk of the passengers travelling on the platform and sustained injuries in the motor accident, is not covered. Therefore it was contended that the 3[rd] respondent is not liable to pay any compensation to the petitioner. M.A.C.A. No. 2888 of 2014 -:4:- It was further contended that the motor accident was not occurred in the manner stated in the Original Petition. As per the recitals in the documents relating to the criminal case registered with reference to the motor accident, petitioner was travelling on the platform of the lorry alongwith some iron trestles loaded there, which fell on his leg and thereby he sustained injuries. Negligence alleged against the 2[nd] respondent was denied. 5. Exts.A1 to A6 and X1 were marked on the side of the petitioner. The respondent did not adduce any evidence. The Tribunal found on the basis of the above evidence that the motor accident in question was occurred due to the rash and negligent driving of the lorry bearing Registration No.KRC/2799 by it’s driver. Accordingly, 2[nd] respondent was made liable for causing the motor accident. 6. It was disclosed from Exts.A3, A4, A5 series and A6 series that the petitioner had sustained injuries in the motor accident in question. The Tribunal calculated the compensation payable and arrived at a sum of `2,43,250/-. 3[rd] respondent was directed to pay the above sum to the petitioner with interest at the rate of 8% per annum from 08.11.2005, the date on which the M.A.C.A. No. 2888 of 2014 -:5:- Original Petition was filed, till the date of realisation and proportionate costs. 3[rd] respondent has approached this Court in the appeal on hand, aggrieved by the direction issued by the Tribunal to pay the compensation in full with interest and costs in favour of the petitioner and thereby to indemnify the insured. 7. According to the learned counsel for the 3[rd] respondent, the Tribunal ought not to have fastened liability on the 3[rd] respondent to indemnify the insured. It was contended by the learned counsel that as per the claim raised by the petitioner in the Original Petition itself, he was travelling on the platform of the lorry bearing Registration No.KRC/2799. According to him, the driver of the lorry has driven it in a rash and negligent manner and caused it to be overturned. Accordingly, the iron trestle fell on his leg and caused him to sustain serious injuries. According to the learned counsel, since the pleadings are to that effect and the vehicle being a goods carriage meant for transporting goods alone, travelling on it’s platform as a passenger is not legally permitted. 8. The learned counsel contended furthermore that even if the 3[rd] respondent is found liable to pay the compensation arrived at in favour of the petitioner, it ought to have been granted M.A.C.A. No. 2888 of 2014 -:6:- the right to recover it from respondents 1 and 2 who are the driver and the owner of the offending lorry bearing Registration No.KRC/2799, at the relevant time of the motor accident. 9. **Shivaraj Vs. Rajendra and Others and V. Renganathan and another Vs. Branch Manager, United India Insurance Co.Ltd and another** respectively reported in 2018 ACJ 2755 (SC) and 2023 ACJ 623 were also relied on to substantiate the contentions raised. According to the learned counsel, in the decisions cited and relied on, after exonerating the insurer from liability to indemnify the insured, the Apex Court permitted the insurer to have it recovered from the owner and the driver, after depositing the amount in favour of the petitioner. He sought for issuing such a direction in the case on hand. 10. The petitioner is found to have raised a plea in O.P(M.V) No.1416/2005 that the motor accident in question was occurred due to the rash and negligent driving of the lorry bearing Registration No. KRC/2799 by its driver, who was arrayed there as the 2[nd] respondent, while he was travelling on the platform of the vehicle. The petitioner did not raise a claim that he was travelling in the vehicle either in his capacity as the owner of the iron trestles M.A.C.A. No. 2888 of 2014 -:7:- loaded there or as the authorised representative of the owner of those. In fact his claim was that he was travelling in the lorry for unloading the iron trestles loaded there. It can be gathered from the documents marked in evidence that the petitioner had sustained injuries while travelling on the platform of the lorry. It is indicated from Exts.A1 and A2 that the petitioner was travelling on the platform of the lorry that was loaded with some iron trestles. But petitioner was not examined before the Tribunal. 11. The lorry being a goods carriage vehicle and insured with the 3[rd] respondent in that capacity itself, the risk of the petitioner as a gratuitous passenger in it is not covered under the policy issued. Moreover, by travelling on the platform of the lorry, the petitioner violated the legal provisions relating to motor vehicles and also the conditions of the permit stood issued for the vehicle. Therefore, it is established that the petitioner’s status at the relevant time of the motor accident was only as a gratuitous passenger in the lorry. The denial of liability by the 3[rd] respondent to indemnify the owner/insured of the lorry was also on the strength of the Act only policy admittedly issued by it. Therefore, the 3[rd] respondent ought to have been exonerated by the M.A.C.A. No. 2888 of 2014 -:8:- Tribunal from it’s liability to indemnify the owner cum insured of the vehicle. 12. In the context of the case stood established, 3[rd] respondent is only to be exonerated from it’s liability to indemnify the owner/insured for the compensation payable in favour of the petitioner. In **Shivaraj** supra relied on by the learned counsel, the Apex Court after exonerating the insurer from its liability to indemnify the insured, directed it to pay the compensation in favour of the petitioner and thereafter to get the same recovered from the owner of the offending vehicle. 13. In **V.Renganathan** supra also, a similar direction was issued by the Apex Court to the insurer relying on **Shivaraj** supra. 14. The Apex Court in **Shivaraj** supra has directed the insurer to deposit the amount in favour of the petitioner and granted it liberty to recover the same from the owner of the vehicle in view of the position of law settled in **National Insurance Company Ltd. v. Swaran Singh and Ors.** [(2004) 3 SCC 297], **Mangla Ram Vs. Oriental Insurance Co.Ltd** [(2018 ) 5 SCC 656], **Rani and Ors. Vs. National Insurance Co.Ltd and** M.A.C.A. No. 2888 of 2014 -:9:- **Ors.** [2018 (9) SCALE 310] and **Manuara Khatun and Ors. Vs. Rajesh Kumar Singh And Ors.** [(2017) 4 SCC 796]. 15. Therefore, this Court also finds justification in directing the 3[rd] respondent to pay the compensation in favour of the petitioner and thereafter to have it recovered from the owner of the vehicle. Appeal succeeds for the reasons and is allowed. 3[rd] respondent is exonerated from its liability to indemnify the insured, but directed to pay the compensation stood awarded by the Tribunal in favour of the petitioner and to recover the same from the owner of the vehicle. **Sd/-** **MARY JOSEPH, JUDGE** JJ