New India Assurance Company Ltd. v. Molly, Reji, Jolly, The Secretary Chakkuppalom Grama Panchayath, and T.K. Rajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY ,THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940** **MACA.No. 2229 of 2015** **AGAINST THE AWARD IN OPMV 171/2010 of ADL.D.C. & MACT,THODUPUZHA DATED 21-11-2014** ## **APPELLANT/3rd RESPONDENT IN OPMV:** **THE NEW INDIA ASSURANCE COMPANY LTD. BRANCH OFFICE, KATTAPPANA, IDUKKI, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENTS/CLAIMANTS 1 TO 3 AND R1 & R2 IN OPMV:** - **1 MOLLY, AGED 55 YEARS,W/O. LATE JOY, PERUMPARAYATHU HOUSE, 7TH MILE, ANAKKARA P.O., UDUMBANCHOLA TALUK, IDUKKI-685 512.** - **2 REJI, AGED 35 YEARS S/O. LATE JOY, PERUMPARAYATHU HOUSE, 7TH MILE, ANAKKARA P.O., UDUMBANCHOLA TALUK, IDUKKI-685 512.** - **3 JOLLY, AGED 35 YEARS W/O. SASI, PERUMPARAYATHU HOUSE, 7TH MILE, ANAKKARA P.O., UDUMBANCHOLA TALUK, IDUKKI-685 512.** - **4 THE SECRETARY CHAKKUPALLOM GRAMA PANCHAYATH, ANAKKARA P.O., VANDANMEDU, IDUKKI-685 512.** - **5 T.K.RAJAN, S/O. KOSHY, THUNDATHIL HOUSE, ANAKKARA P.O., IDUKKI-685 512.** **BY ADVS. SRI.P.M.JOHNY** - **SRI.JIKKU SEBAN GEORGE SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI** ## **OTHER PRESENT:** ## **ADV. ELIZABATH ANTONY FOR R4** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 2229 of 2015** **2** ## JUDGMENT The challenge in this appeal is against the award dated 21.11.2014 of the Motor Accident Claims Tribunal, Thodupuzha (for short 'the Tribunal') in OP(MV) No.171/2010. The appellant is the 3[rd] respondent before the Tribunal, who was the insurer of the goods autorikshaw bearing registration No.KL.37/4081 involved in the accident. 2. The facts of the case in brief are to the following effect : One Mr.Joy who was the husband of the first claimant and father of the 2[nd] and 3[rd] claimants before the Tribunal, was employed by the 1[st] respondent for removing waste from the Panchayat area. On 25.06.2009, the said Joy was travelling in a goods vehicle bearing registration No.KL.37/4081 from Annakkara to the dumping yard, accompanying waste materials loaded therein, Joy fell on the road from the vehicle at Sulthankada Bhagam due to rash and negligent driving by its driver. He had sustained serious injuries and while being transported to St.John's Mission Hospital, Kattappana, **MACA.No. 2229 of 2015** **3** succumbed to the injuries. The vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent at the relevant time. His legal heirs preferred the claim petition numbered as above before the Tribunal seeking for a sum of Rs.7,00,000/- as compensation with interest and costs from the owner, driver and insurer of the goods autorikshaw, who were arrayed as respondents 1 to 3 in the claim petition. 3. Before the Tribunal the 1[st] and 2[nd] respondents, who are the owner and driver of the goods vehicle remained _ex parte_ . The 3[rd] respondent, the insurer had filed a detailed written statement admitting insurance coverage of the goods vehicle with them at the relevant time of accident. It is contended that the vehicle was insured as a commercial vehicle, that the deceased was travelling by sitting on the top of the waste loaded in the platform of the goods vehicle, that he was a gratuitous passenger in the vehicle, that the policy issued does not cover the risk of a gratuitous passenger and that the respondent is not liable to indemnify the insured. 4. The claim petition was tried by the Tribunal. On the side of the petitioners, no oral evidence was adduced but only **MACA.No. 2229 of 2015** **4** documentary evidence, which takes in Exts.A1 to A6. On the side of the 3[rd] respondent, evidence was not adduced. The Tribunal found on appreciation of the evidence on record that the 2[nd] respondent, who was driving the goods vehicle at the relevant time, was liable for causing the accident by his rash and negligent driving. Tribunal has also found the claimants entitled to get compensation from the respondents and arrived at a sum of Rs.7,05,500/- as compensation payable to them and directed the 3[rd] respondent to pay the said sum with interest at the rate of 6% per annum from the date of the claim petition till the date of realisation. Aggrieved by the direction to indemnify the insured for the sum arrived at as compensation, the captioned appeal is preferred. 4. Sri.Lal George, the learned counsel on behalf of the appellant has contended that the deceased was a gratuitous passenger in the goods vehicle, involved in the accident. According to him, the deceased was not an employee of the insured of the vehicle, who was also its registered owner at the relevant time. According to him, additional premium was not collected by the insurer under the policy issued to the vehicle by **MACA.No. 2229 of 2015** **5** them to cover the risk of any employee engaged in loading/ unloading operation in the vehicle. It is contended by the learned counsel that goods vehicle are meant to carry goods and not for carrying passengers. Learned counsel has also relied on **National Insurance Co. Ltd v. Cholleti Bharatamma and others** [(2008) 1 SCC 423] to substantiate his contention that the deceased being a gratuitous passenger on Board of the goods vehicle, the claimants as his legal heirs are not entitled to get any compensation for the loss caused to them by his death. Accordingly, the learned counsel pleaded for interference with the impugned award and reversal of the finding, fixing liability upon the appellant. 5. The claimants were not represented before this Court. Smt.Elizabeth Antony, represented the 4[th] respondent-Panchayat in the appeal. 6. It is pertinent to note from the impugned award that the 4[th] respondent in this appeal, who was the 1[st] respondent before the Tribunal, failed to file a written statement in the claim petition. 7. Bearing the contentions raised by the appellant in **MACA.No. 2229 of 2015** **6** mind, this Court had appreciated the evidence on record. As already stated, the evidence consists of the documentary evidence marked before the Tribunal as Exts.A1 to A6. The plea of the claimants before the Tribunal was that Mr.Joy was travelling in the vehicle as an employee of the 1[st] respondent. The said factum was disputed by the 3[rd] respondent insurer in their written statement. Therefore, the burden primarily is on the claimants to establish that Mr.Joy was travelling in the vehicle as an employee of the 1[st] respondent. The burden was not discharged by the claimants. The appellant/insurer failed to produce the copy of certificate of insurance before the Tribunal and got the same marked in evidence. However, the contention taken was that the deceased was a gratuitous passenger in the vehicle. It has been evidenced from the recitals in Ext.A5, the final report that the deceased was travelling in the platform of the vehicle, sitting over the waste loaded therein. In the absence of any evidence from the claimants that the deceased was travelling in the vehicle either as an employee of the 1[st] respondent or as the owner of the goods loaded therein or as the authorised representative of the owner of the goods, liability **MACA.No. 2229 of 2015** **7** cannot be fastened on the insurer of the vehicle, to indemnify the insured. 8. In the case on hand there is clear evidence to establish that the deceased was travelling in the platform of the goods vehicle by sitting over the waste loaded therein. In view of **Cholleti Bharatamma** 's case supra, relied on by the learned counsel for the appellant, the Apex Court has held that to cover the risk of the claimant under Section 147 of the Motor Vehicle's Act, the deceased must have travelled in the cabin of the goods vehicle and not in the platform with the goods. In the case on hand, the deceased having been there in the vehicle as a passenger, sitting over the waste loaded therein, his risk will not be covered by the policy issued for the vehicle by the insurer. The Tribunal has fastened the liability upon the insurer to indemnify the insured, on a wrong appreciation of the evidence on record and for that reason, the award is liable to be interfered with. In the result, the appeal stands allowed. The finding of the Tribunal fastening the appellant with liability to indemnify the insured is set aside. Challenge having not been raised against **MACA.No. 2229 of 2015** **8** fixation of compensation by the Tribunal, it is maintained. The 1[st] respondent insurer shall pay the amount arrived at as compensation with interest and costs as directed by the Tribunal within a period of two months from the date of receipt of a copy of this judgment. The appeal stands allowed in part on the above terms. No order on costs. **Sd/-** **MARY JOSEPH** **JUDGE** ttb