Premalatha and others v. Shaji and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 MACA.No. 1112 of 2010 ------------------------------------OPMV.278/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, N. PARAVUR .................... ## APPELLANT(S): PETITIONERS: 1. PREMALATHA, W/O.REGHU, AGED 41, PUTHUVELATHALATH VEEDU, PALATHURUTHU, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 2. REMYA, AGED 22, D/O.REGHU, PUTHUVELATHALATH VEEDU, PALATHURUTHU, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 3. RENJITHA, AGED 20, D/O.REGHU, PUTHUVELATHALATH VEEDU, PALATHURUTHU, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 4. RENJU, AGED 17, S/O.REGHU, REPRESENTED BY HIS MOTHER PREMALATHA, PUTHUVELATHALATH VEEDU, PALATHURUTHU, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. 5. LEKSHMI, AGED 81, W/O.NARAYANAN, PUTHUVELATHALATH VEEDU, PALATHURUTHU, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. - BY ADV. SRI.C.CHANDRASEKHARAN - SRI.P.VISWANATHA MENON ## RESPONDENT(S): RESPONDENTS 1. SHAJI, S/O.JOBOY, MALIAKAL HOUSE, NEENDOOR, VADAKKEKKARA.P.O, N.PARUR, PIN-683 513 2. ABDUL SALAM, S/O.SULAIMAN, NARAKKATTU VEEDU, NEAR ANGANVADI, PALATHURUTHU KARA, CHENDAMANGALAM VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT, PIN-683 513 MACA.No. 1112 of 2010 :: 2 :: 3. ABDUL SATHAR, S/O.ABDUL RAHIMAN, THEKKEPARAMBIL HOUSE, MANJALI KARA, NEAR SOCIETY, KARUMALLOOR VILLAGE, N.PARUR, PIN-683 513 4. THE NATIONAL INSURANCE CO.LTD., BRANCH OFFICE, MUNICIPAL SHOPPING COMPLEX, (NEAR SREEMOOLAM CLUB) N.PARUR, PIN-683 513 ADV. SRI.LAL GEORGE FOR R4 SRI.V.M.KRISHNAKUMAR FOR R1 TO 3 SRI.S.SARAVANA BHAVAN FOR R1 TO 3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1112 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of November 2010 ## **JUDGMENT** ## **Basheer, J.** Appellants are the wife, children and mother of one Reghu, who succumbed to the fatal injuries suffered by him in a road traffic accident that occurred on February 17, 2004. Deceased Reghu was transporting his “four wheeler cart” which was being used by him for sale of his merchandise (ground nuts) on the ill fated day. He was transporting the four wheeler along with his other paraphernalia in a Goods autorikshaw to the Aluva Sivarathri ground where the annual festival was being held. It is beyond controversy that the goods vehicle turned up side down on its way to Aluva. Deceased Reghu was caught underneath the vehicle and sustained the fatal injuries resulting in his death. Appellants claimed a total sum of Rs.5,85,000/- towards compensation from the owner, driver and insurer of the above goods vehicle. 2. The Tribunal, after considering the oral and documentary evidence available on record, found that the appellants would be entitled to get a total sum of Rs.2,91,128 with 7% interest, towards compensation. However, the Tribunal exonerated the insurance company from the liability to indemnify the insured/owner of the vehicle and held that the owner and driver shall be liable to pay compensation to the appellant. 3. Appellants impugn the above award primarily on the ground that exoneration of the insurer is totally illegal and unsustainable. It is also contended that the quantum fixed by the Tribunal is totally inadequate and meager. It is M.A.C.A.No.1112 OF 2010 :: 2 :: further contended by the learned counsel that the insurance company had never disputed that the goods belonging to the deceased were being carried in the vehicle involved in the accident. 4. The specific case of the insurance company, as could be seen from the written statement filed by it, was that the accident had occurred due to the negligent act of the deceased himself who travelled in the goods autorikshaw sitting along with the driver in his seat. According to the insurance company, the driver lost control of the vehicle since the deceased was sharing his seat. It is contended by the learned counsel that the fact that the deceased was carrying the goods in the vehicle was beyond controversy. But the evidence of PW2 will show that the deceased was travelling in the vehicle sitting on the platform along with his goods. PW2 asserted that he was sharing the driver's seat as requested by the driver himself. 5. We have carefully perused the oral testimony of PW2. The assertion made by PW2 that he was in fact persuaded to share the driver's seat at the instance of the driver himself has not been challenged at all. However, learned counsel for the insurance company invites our attention to Ext.A1 charge sheet filed by the police after completing the investigation in the crime registered against the driver of the autorikshaw. It is true that in the charge sheet, it is seen recorded that the accident occurred while the deceased was travelling in the vehicle sitting along with the driver. But as has been mentioned by us earlier, the presence of PW2 in the autorikshaw has not been disputed by the insurance company. No such question was ever put to this witness in the course of cross examination. M.A.C.A.No.1112 OF 2010 :: 3 :: 6. We do not find any reason to disbelieve the oral testimony of PW2. What remains is, only the question whether the deceased was traveling by sharing the driver's seat or sitting on the platform of the auto. 7. We have already noticed that the specific case of the insurance company in the written statement was that the accident occurred only because the deceased happened to share the driver's seat. According to the company, the driver lost control of the vehicle, since the deceased was sharing the driver's seat. Be that as it may. The fact remains that the deceased was carrying his goods in the autorikshaw on the ill fated day. The vehicle turned turtle and the deceased happened to be caught under the vehicle. He succumbed to the injuries later. The short question that arises for consideration is whether the Tribunal was justified in exonerating the insurance company from the liability to pay the compensation in the above facts and circumstances. 8. Learned counsel for the insurance company has invited our attention to a number of decisions in support of his plea that in such a situation, the insurance company cannot be held liable. Particular reference has been made by learned counsel to a decision in United India Insurance Co. Ltd. v. Suresh [2008 (4) KLT 552 SC] and also in National Insurance Co. Ltd. v. Cholleti Bharatamma and others [(2008) 1 SCC 423]. In Suresh (supra), the claimant sustained certain injuries in the accident that occurred while he was travelling in a goods vehicle sitting by the side of the driver. The Tribunal held the owner and insurer of the vehicle liable to pay the compensation repelling the contentions raised by the latter that the claimant was not entitled to get any compensation since he was a gratuitous M.A.C.A.No.1112 OF 2010 :: 4 :: passenger. The High Court in appeal affirmed the above award. But the apex court held thus: “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." 9. However, the apex court further proceeded to hold that the insurance company would be liable to pay the amount of compensation to the claimant and realize the same from the owner of the vehicle. 10. In Bharatamma (supra), it can be seen that the common question that arose for consideration in a batch of appeals was whether passengers travelling in goods carriages would be entitled to claim compensation from the insurer of those vehicles. In other words, the question was whether or not a passenger who accompanies his goods in a goods vehicle would be entitled to claim compensation from the insurer. Their lordships after referring to a large number of decisions held that passengers who were carried in goods vehicles would not be entitled to get compensation from the insurer of those vehicles. 11. Coming back to the case on hand, we have already noticed that the deceased was admittedly carrying his own goods in the ill fated vehicle. Though the charge sheet indicated that the deceased was sharing the driver's seat, the uncontroverted oral testimony of PW2 clearly established that the deceased was sitting on the platform of the vehicle along with his goods. In any of the two events, M.A.C.A.No.1112 OF 2010 :: 5 :: it can never be said that the deceased was not accompanying his goods. Therefore, we have no hesitation to hold that the contention of the insurance company that the claimants would not be entitled to claim compensation from it since the deceased was a gratuitous passenger cannot be sustained at all. Learned counsel for the appellants has invited our attention to a few decisions in support of his argument, one of which is New India Assurance Co. Ltd. v. Bhudhiya Devi and others (2010 ACJ 2045). In this case, the deceased was travelling in a truck along with his cows and buffallows. The apex court held that the insurance company would be liable to indemnify the owner. 12. In B.V.Nagaraju v. Oriental Insurance Co. Ltd. [(1996) 4 SCC 647], the owner of a truck instituted a petition seeking compensation for the damage caused to his vehicle in an accident. At the time of the accident, the truck was carrying nine persons. The policy issued by the insurance company did not cover risk of passengers in the vehicle except employees (other than the driver) not exceeding six, coming under the purview of the Workmen's Compensation Act. The claim made by the owner of the vehicle was repudiated by the company. The State Consumer Commission allowed a sum of Rs.75,700/- as compensation. But the National Consumer Commission reversed the order of the State Commission. However, the apex court allowed the appeal filed by the owner and held thus: “It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the poser, keeping apart the ## M.A.C.A.No.1112 OF 2010 :: 6 :: load it was carrying. In the present case the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident” _._ Their lordships further laid down that “The exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is to indemnify the damage caused to the vehicle.” 13. Keeping in view the dicta laid down in the judgments referred to above, we are satisfied that the insurance company has to be ordered to pay the appellants the compensation fixed by the Tribunal. We do so. However, the company will be entitled to recover the amount of compensation from the owner and driver of the offending vehicle. Appeal is disposed of in the above terms. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** jes