National Insurance Co. Ltd. v. Siddique and Sainudheen N. (MACA No. 346 of 2011)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` FRIDAY, THE 24[TH] DAY OF MARCH 2023 / 3RD CHAITHRA, 1945 ``` ``` MACA NO. 346 OF 2011 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 610/2003 OF ADDITIONAL MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL, TRICHUR ``` ## **`APPELLANT/2ND RESPONDENT:`** ``` NATIONAL INSURANCE CO.LTD. GURUVAYOOR, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN-35. ``` ``` BY ADV SRI.E.M.JOSEPH ``` ## **`RESPONDENTS/CLAIMANT & 1ST RESPONDENT:`** ``` 1SIDDIQUE, AGED 52 YEARS, S/O.KUNJU, PARAKKATTIL HOUSE, VADAKKEVELLADIKUNNU, PALAKKAD-678 001. 2SAINUDHEEN.N MULAKKAL HOUSE, P.O.THEKKEVAVANNUR, KOOTTANADU, PALAKKAD-679 533. ``` ``` BY ADV SRI.C.A.CHACKO ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 346 OF 2011 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 24[th] day of March, 2023** The appeal on hand is directed against an award passed by Additional Motor Accident Claims Tribunal, Thrissur (for short ‘the Tribunal’) on 22.09.2010 in OP(M.V) No.610/2003. The appellant herein is the 2[nd] respondent before the Tribunal who was the insurer of the offending vehicle involved in the motor accident. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 and 2 in accordance with their status in the Original Petition. 3. The grievance of the 2[nd] respondent/appellant pertains to the fact that the policy issued in respect of the offending vehicle was an Act only policy under which premium was not collected to cover the risk of a ``` 3 ``` ``` MACA NO. 346 OF 2011 ``` gratuitous passenger in the vehicle, who met with the motor accident in question. It was contended that goods were not loaded in the vehicle at the relevant time when it met with the motor accident. Further contention raised was that had there been any goods loaded in the vehicle that would have been spoken by the petitioner during his examination before the Tribunal as PW1. According to the learned counsel, premium collected under the policy issued in respect of the offending vehicle, which was marked in evidence as Ext.B1, was only to cover the risk of employees other than driver who travelled in the vehicle. According to him, the context being so, the Tribunal is highly unjustified and erred in holding that the risk of the petitioner who travelled in the vehicle at the relevant time as a gratuitous passenger was covered by the policy and liability fixed on the insurer/2[nd] respondent to indemnify the insured. 4. A judgment of the Single Bench of this Court in **Ramakrishnan V. K.T.Baiju and others** directed against ``` MACA NO. 346 OF 2011 ``` ``` 4 ``` an award in O.P(MV)No.1289/2006 was also relied on by the learned counsel for the appellant to contend that on failure of the petitioner to prove the availability of goods in the offending vehicle at the relevant time of the motor accident, his risk is not secured by the policy stood issued in respect of it. 5. The learned counsel for the respondent has also relied on **United India Insurance Co. Ltd. V Suresh [2008 (4) KLT 552 (SC)],** where, a Division Bench of the Apex Court has held that the presence of goods in the vehicle is a factum relevant to be established by the petitioner, to have his risk in the motor accident covered under the policy. 6. **New India Assurance Company Ltd. v Jameela and Others [2011 (2) KHC 320]** has been relied on by the learned counsel for the petitioner to contend on the contrary that availability of goods in the vehicle is not at all necessary to be established. According ``` MACA NO. 346 OF 2011 ``` ``` 5 ``` to him, the risk of the owner or the authorized representative of the owner of the goods loaded in the vehicle is covered by an Act only policy issued for that vehicle provided the petitioner establishes that he had been travelling in the vehicle at the relevant time when it was involved in the motor accident, in his capacity as mentioned hereinabove. The learned counsel contended furthermore that the petitioner is not required to establish that goods were available in the vehicle at the relevant time when it met with the motor accident. 7. A glance at the impugned award would reveal that the petitioner was examined before the Tribunal as PW1. It was spoken by PW1 that he was travelling in the vehicle to Guruvayoor, at the relevant time for the purpose of collecting timbers of coconut trees and transporting those in the vehicle for use in the construction of his house and the motor accident was occurred on his way to the destination. The argument advanced was that the purpose of his travelling in the ``` MACA NO. 346 OF 2011 ``` ``` 6 ``` vehicle was only to collect the timber from Guruvayoor for construction of his house. The learned counsel for the 3[rd] respondent though cross examined him elaborately failed to bring out anything to contradict his version or to make it incredible. Therefore, the evidence tendered by PW1 during examination in chief was not defeated in any manner while being cross examined or in otherwords consistency was maintained throughout the examination. 8. The First Information Statement was found lodged by the petitioner himself before the Police and based on that, the law was set in motion with reference to the motor accident in question. FIS was found lodged by him on 12.02.2002 from the Hospital where he was admitted for treatment, following the motor accident, occurred on 11.02.2002. The First Information Statement was lodged by the petitioner before the Police on the immediately succeeding day of the motor accident. What was found given by the petitioner as first informant to the Police is exactly the same as that recorded by the Tribunal during ``` MACA NO. 346 OF 2011 ``` ``` 7 ``` his examination as PW1. Therefore, there is absolutely no reason to disbelieve the version of PW1 that he was travelling in the vehicle as owner of the goods to be loaded in it from Guruvayoor. ## 9. In **Ramakrishnan** supra, a Single Bench has held:- “The claimant did not however adduce any evidence to establish his contention that he was travelling in the goods autorickshaw as the representative of the owner of the goods carried therein. In fact he was not even able to prove his contention that any goods were carried in the autorickshaw. Not even the nature of the goods carried therein was mentioned by him either in the claim petition or when he was examined as PW1.” From the above extract, it is revealed that the claim of the petitioner itself was that he was accompanying the goods loaded in the vehicle and in that context, the Single Bench took the view that the presence of the goods in the vehicle is necessary to be established. 10. In **United India Insurance Co. Ltd.** supra, relied on by the learned counsel for the respondent, the ``` MACA NO. 346 OF 2011 ``` ``` 8 ``` Apex Court gave a liberal meaning for the word “carried” used in Section 147 of the Motor Vehicles Act, 1988 (for short ‘the M.V Act’) and that is extracted hereunder for convenient reference:- "According to us, the language of the amended provision does not show that the owner or the representative must accompany the goods or his representative who hires the vehicle travels in the hired vehicle from the place of hiring to the place where the goods are to be loaded into the vehicle and then proceeds to travel along with the goods. It is also common that after unloading the goods such passengers travel in the same vehicle to the place from where they commenced journey. The passenger does so and is allowed to do so in his capacity as the owner of the goods or his representative who has hired the vehicle for transporting goods. The amended provision makes it explicitly clear that the word 'carried' qualifies the owner of goods or his representative and not the goods carried. If goods are found inside the vehicle at the time of the accident, it is a clinching circumstance to establish that the passenger who claims to be the owner of the goods or the owner's representative was travelling in that capacity. Chances of passengers or the insured raising false claims in this regard cannot be safe method to ascertain the intention of the legislature. False claims can be disapproved by appropriate contentions. In our view, such issues are matters of evidence and will not stand scrutiny while construing a beneficial provision intended to compensate the loss caused to innocent victims of motor ``` MACA NO. 346 OF 2011 ``` ``` 9 ``` accidents. The party who claims that the person who died or sustained injury as the owner of goods or the representative of the owner of the goods shall discharge the burden cast on him. Merely for the reason that the benefit granted will be misused, it will not be proper to give a narrow interpretation to the above provision. We, therefore, hold that the owner or the authorised representative need not invariably be shown to accompany the goods at the time the goods carriage meets with accident causing injury to or resulting in the death of the passenger who is either the owner of the goods or the authorized representative of the owner of the goods.” In the case referred to, the petitioner has raised a claim that he was accompanying the goods loaded in the vehicle. Therefore it was incumbent upon him to prove the availability of the goods in the vehicle at the relevant time when the motor accident was occurred. In the view of the Single Bench, the petitioner failed to prove that and therefore, his claim was declined. In **New India Assurance Insurance Co.Ltd** supra, the Apex Court held: “ The amended provision makes it explicitly clear that the word 'carried' qualifies the owner of goods or his representative and not the goods carried. If goods are ``` MACA NO. 346 OF 2011 ``` ``` 10 ``` found inside the vehicle at the time of the accident, it is a clinching circumstance to establish that the passenger who claims to be the owner of the goods or the owner's representative was travelling in that capacity.’’ It is discerned from the above extract that when the claim of the petitioner itself was that he was proceeding to the destination to load the goods in the vehicle and the motor accident took place in the midst of that journey, he is not required to prove the availability of timber in the vehicle at the relevant time. The word 'carried' in the view of the Apex Court only means that the owner or the authorised representative of the owner of the goods were travelling in the vehicle either for the purpose of loading the goods or were travelling from the destination, after unloading the goods. Therefore if evidence in that regard has come on record, definitely the urge of the petitioner that his risk is covered under the policy issued in favour of the offending vehicle is only to be accepted. 11. The specific claim of the petitioner in the case ``` MACA NO. 346 OF 2011 ``` ``` 11 ``` on hand as PW1 was that he was travelling in the goods vehicle for the purpose of loading some timbers of coconut trees from Guruvayoor. Unfortunately, he met with the motor accident during the course of his journey to Guruvayoor for the purpose. Therefore, the availability of goods in the vehicle is something improbable for the petitioner to establish. In the factual scenario of the case, the proof of availability of goods in the vehicle is not at all material. PW1 has deposed that on his way to Guruvayoor for loading timbers in the lorry and to transport the same for construction of his house that the motor accident was occurred. It is clear from the above that the intention of the petitioner while travelling in the vehicle was to accompany timbers to be loaded in it from Guruvayoor, as its owner. The contention of the learned counsel for the 2[nd] respondent to defeat the claim of the petitioner for his failure to prove the availability of the goods in the vehicle is liable to be discarded in the context, being totally ``` MACA NO. 346 OF 2011 ``` **==> picture [16 x 9] intentionally omitted <==** devoid of merits. The Tribunal found correctly on the basis of the evidence on record that the risk of the petitioner as owner of the goods is covered under the policy issued by the insurer and fastened it with liability to indemnify the insured. The award under challenge is not liable to be interfered with but only to be confirmed. Appeal fails for the reasons and is dismissed. Sd/- **MARY JOSEPH JUDGE** saap