Reliance General Insurance Co. Ltd. v. Ishak Thorappa and Others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 3[RD] DAY OF OCTOBER 2023 / 11TH ASWINA, 1945 ``` ## `MACA NO. 50 OF 2019` ``` [APPEAL AGAINST THE AWARD IN OP(MV) NO.507/2015 DATED 29.09.2018 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI] ``` ## `APPELLANT/3RD RESPONDENT:` ``` RELIANCE GENERAL INSURANCE CO.LTD. II FLOOR, CITADEL ARCADE, RC ROAD, OPPOSITE TO RAGORE CENTINARY HALL, KOZHIKODE-673632, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM. BY ADVS. GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN ``` ## `RESPONDENTS/CLAIMANT & RESPONDENTS 1 AND 2:` ``` 1ISHAK THORAPPA S/O.KUNHIMUHAMMED, UNNIYALUINGAL HOUSE, POOKKOTTUR, VALLUVAMBRAM, MALAPPURAM DISTRICT. 2AHAMMED ISHQUE K.T., YOUSAF KALATHINGALATHODI, KALATHINGALTHODI HOUSE, PULLARA, VALLUVAMBRAM.P.O, MALAPPURAM DISTRICT-679326. 3SAVAD, S/O.SAIDALAVI, IMMINIKKARA HOUSE, VELLUVAMBRAM.P.O., PULLANOOR, MALAPPURAM DISTRICT. BY ADV SRI.E.C.AHAMED FAZIL ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 2 ``` ## `JUDGMENT` ``` This appeal is submitted by the 3[rd] respondent in the O.P.(MV) No.507/2015 on the files of the Motor Accident Claims Tribunal, Manjeri. ``` ``` 2.The said claim petition was submitted by the first respondent herein seeking compensation for the injuries he sustained in a motor accident that occurred on 09.04.2013. According to him, the ``` ``` accident occurred while he was travelling back in ``` ``` a Tata Ace vehicle after supplying newspaper bundles in Malappuram, Manjeri and Kondotti, and when the vehicle reached near Pookkottoor petrol pump, it capsized, causing severe injuries to the 1[st] respondent. Immediately, he was taken to the ``` ``` hospital. The second respondent in the claim petition was the registered owner of the said vehicle, and it was insured with the appellant herein. The first respondent was aged 20 years and engaged in a job of supplying newspaper bundles to various places, and the monthly income claimed was Rs.6000/- per month. The claim petition was ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 3 ``` ``` submitted seeking an amount of Rs.3,00,000/- as ``` ``` compensation ``` **==> picture [400 x 14] intentionally omitted <==** ``` petition was exparte. The appellant/3rd respondent filed a written statement admitting the existence of valid policy in respect of the vehicle involved in the accident. However, it was contended that the 1[st] respondent was a gratuitous passenger in a ``` ``` goods vehicle; hence, he was not covered by the policy. Therefore, they sought exoneration from the liability. ``` ``` 4.The evidence in this case consists of ``` ``` Exts.A1 to A6 from the side of the 1[st] respondent, and Ext.X1 disability certificate was also marked. ``` ``` From the appellant/respondent’s side, Ext.B1 and B2 were marked. After considering the materials placed on record, the Tribunal arrived at a ``` ``` conclusion that the accident occurred due to the ``` ``` negligence on the part of the driver of the ``` ``` Autorickshaw. The quantum of compensation was fixed as Rs.1,79,500/-. The Tribunal also found that the 1[st] respondent was a gratuitous passenger, but the appellant was directed to deposit the said ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 4 ``` ``` amount along with interest at the rate of 9% per annum at the first instance and to recover the said amount from the second respondent in the ``` ``` claim petition, the registered owner of the said vehicle. This appeal is submitted by the appellant, challenging the direction issued by the Tribunal to deposit the said amount and to get it recovered from the 2[nd] respondent ``` ``` 5.Heard Sri. George Cherian (Thiruvalla), the Learned Senior Counsel appearing for the appellant and Sri. E.C. Ahammed Fasil, the learned counsel for the respondent. Even though notice was served on the other respondents, there is no appearance for them. ``` ``` 6.The learned counsel for the appellant ``` ``` would contend that the direction issued by the Tribunal to pay the compensation by the appellant at the first instance and to get it recovered from the second respondent is erroneous. It was pointed out that since the policy issued in this case does not cover, the risk of a gratuitous passenger carried in the vehicle, which is a goods vehicle, under no circumstances any liability can be ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 5 ``` ``` fastened upon the appellant. Therefore, it has to ``` ``` be treated as a case where there is no policy at all, and hence, the question of issuing a direction to pay the said amount at the first ``` ``` instance does not arise. According to him, such a direction can be issued only in cases involving a ``` ``` violation of policy conditions. In this case, the ``` ``` question that arises is not one relating to a ``` ``` breach of policy condition but the lack of policy ``` ``` at all to cover the risk of a gratuitous ``` ``` passenger.The Learned Sr.Counsel relied on the decisions rendered by the Hon’ble Supreme Court in New India Assurance Co. Ltd. Vs. Asha Rani [2013 ``` - _`(1) KLT 165] and New India Insurance Co. Vs.`_ ``` Daisy Paul [2021 2 KHC 449]. ``` 7. `On the other hand, the learned counsel for` ``` the 1[st] respondent opposes the aforesaid condition by pointing out that, even if it is accepted that ``` ``` the 1[st] respondent was a gratuitous passenger, the settled position of law is that the insurance ``` ``` company has to be directed to deposit the said ``` ``` amount at the first instance with a permission for them to recover the said amount from the ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 6 ``` ``` registered owner of the said vehicle. In support of his contentions, the learned counsel places reliance upon the decisions rendered by the Manager, National Insurance Co. Ltd v. Saju Paul and another [2013 (2) SCC 41], Manuara Khatun and Ors v. Rajesh Kumar Singh and other [(2017) 4 SCC 796], Shivaraj v. Rajendran and anr [2018 (10) SCC 432], V. Renganathan and anr v. Branch Manager, United India Insurance Co. Ltd and anr [2023 ACT 623] and also a decision rendered by a Single Bench this Court in United India Insurance Co. Ltd. v. Rijawana Jamshed Mulla [2020 (5) KLT 32]. 8.I have gone through the materials placed on record and also the decisions relied on by both sides. The crucial aspect to be noted is that the position of law as regards the liability of an insurance company in respect of the gratuitous passenger carried in the goods vehicle is settled by the Hon’ble Supreme Court in Asha Rani’s case (supra). However, later in Saju Paul’s casecited (supra), even though the Hon’ble Supreme Court followed the principles laid down inAsha Rani (supra), a slightly different approach was taken ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 7 ``` ``` with regard to the manner in which the recovery has to be effected. In the said decision, a specific question was considered as to whether a ``` ``` direction could be issued to the insurance company ``` ``` to satisfy the amount awarded in favour of the claimant first and recover the same from the owner of the said vehicle. While deciding the said issue, the Honourable Supreme Court referred to various decisions, including the decision in National Insurance Co. Vs. Farwad Meni [2009 SCC ``` ``` 785], wherein one question that has been referred ``` ``` to a larger Bench for consideration was related to the direction to pay the compensation by the insurance company first and to get it recovered from the registered owner subsequently. In Saju ``` ``` Paul’s case, the Honourable Supreme Court came to the conclusion that in the facts and circumstances ``` ``` of that case, the insurance company can be ``` ``` directed to deposit the awarded amount first. A careful reading of the observations made in Saju Paul (supra) would indicate that, such a direction was issued by the Hon’ble Supreme Court in peculiar facts and circumstances of that case as ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 8 observed in paragraph 30, and therefore, ``` ``` evidently, it was one issued under Article 142 of the Constitution of India. The said decision was subsequently followed inManuara Khatun (Supra), and a similar direction was issued. Even though it was not explicitly mentioned that such a direction was issued by invoking the powers of the Hon’ble Supreme Court under Article 142, the said ``` ``` direction was issued specifically referring to the decision rendered by the Hon’ble Supreme Court in Saju Paul’scase. Thus, this would give a clear idea that the same was also under Article 142 of the Constitution of India. A Single Bench of this Court inDaisy Paul’s case cited supra, the question whether the directions issued by the Hon’ble Supreme Court inSaju Paul’s caseand Manuara Khatun’s case were under Art. 142 of the ``` ``` Constitution of India was specifically considered. After referring to a large number of decisions rendered by the Hon’ble Supreme Court on the said point, it was concluded that a direction to the appellant to pay the compensation to the first respondent could not be made.. ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 9 ``` ``` 9.Of course, it is true that, as pointed out by the learned counsel for the first respondent, ``` ``` in Rijawana Jamshed Mulla’s case (supra) a Single Bench of this Court, in similar circumstances, issued directions to the insurance company to pay the amount first and get it recovered from the registered owner of the said vehicle after ``` ``` referring toAsha Rani’s case but following the principles laid down inSaju Paul(supra) and Manuara Khatun(supra). However, the crucial ``` ``` aspect to be noticed is that, in Rijwana’s case, the question whether the directions issued by the Hon’ble Supreme Court inSaju Paul’scase and ``` ``` Manuara Khatun’s case were under Art.142 of the ``` ``` Constitution of India or not, was not specifically raised and therefore there was no occasion for this Court to decide the said issue, and instead this Court issued similar directions as contained inSaju Paul and Manuara Khatun without taking note of the circumstances under which the Honourable Supreme Court issued such directions. However, since the said question was specifically ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 10 ``` ``` raised, discussed and considered by this Court in ``` ``` Daisy Paul’s case and passed an order in favour of the insurance company, I am of the view that the said decision has to be followed. ``` ``` 10.The learned counsel for the 1[st] respondent ``` ``` also brought the attention of this Court to the decisions rendered inV. Renganthan’scase and ``` ``` also inSivraaj’s case cited supra. Of course, ``` ``` similar directions were issued in both the said cases. However, in those cases also, apart from the fact that directions were issued to the insurance company to deposit the said amount at first by stating that it is well settled position of law, no detailed discussions are seen made. ``` ``` Besides the same, the exact question was also not ``` ``` decided in the said cases, and it appears that the direction was issued by taking note of peculiar facts and circumstances of those cases as well. Thus, it is seen that this Court has already held inDaisy Paul’s case (supra) that decisions wherein the Honourable Supreme Court issued directions to the insurance company to pay the amount first were under Article 142 of the ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 11 ``` ``` Constitution of India. Therefore, I am of the view ``` ``` that no such directions can be issued by this Court while invoking the powers under Sec.173 of the Motor Vehicles Act. Thus, I find that the direction issued by the Tribunal to the appellant to deposit the compensation in the first instance ``` ``` is not legally sustainable. ``` ``` 11.On the factual aspects, the learned ``` ``` counsel raised a contention that the appellant was coming back in the vehicle after unloading the goods carried in the said vehicle. Therefore, it was contended that he would come under the owner of the goods in the vehicle. However, it is ``` ``` evident from the records that there were no goods in the vehicle at the time of the accident. The ``` ``` expression in Sec.147 of the Motor Vehicles Act is “the owner accompanying the goods”. Therefore, in ``` ``` the absence of any goods, he cannot be treated as a person coming within the purview of the said provision as he cannot be treated as a person who falls within the expression “the owner accompanying the goods”. Therefore, the contention raised by the learned counsel for the 1[st] ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 12 ``` ``` respondent cannot be accepted. ``` ``` 12. In such circumstances, this appeal is allowed, and the award dated 29.09.2018 in O.P. ``` ``` (MV) No.507/2015 passed by the Motor Accident Claims Tribunal, Manjeri, to the extent it directs the appellant to deposit the amount awarded with interest and the proportionate cost at first and to get it recovered from the registered owner is hereby set aside and it is held that the first respondent shall be at liberty to recover the said amount from the registered owner and driver of the said vehicle.At this juncture, the learned counsel for the 1[st] respondent pointed out that, in compliance with the condition imposed by this ``` ``` Court while staying the execution of the award, the appellant had deposited 50% of the award, and the same was released to the 1[st] respondent as ``` ``` well. In such circumstances, it is clarified that the insurance company can recover the amount already deposited and released to the 1[st] respondent from the owner and the driver of the vehicle. The 1st respondent can recover the remaining amount from the owner and driver, and ``` ``` M.A.C.A.No.50 of 2019 ``` ``` 13 ``` ``` the 3[rd] and 2[nd] respondents in this appeal. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` SM ```