Reliance General Insurance Co. Ltd. v. Prasanth (minor) through his guardian, Sumina James and E A James

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA,** **1943** ## **MACA NO. 316 OF 2013** **AGAINST THE AWARD DATED 27.04.2012 IN OPMV 1158/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/3RD RESPONDENT:** RELIANCE GENERAL INSURANCE CO. LTD. COCHIN 31, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM. BY ADVS. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.ALEXY AUGUSTINE ## **RESPONDENTS:CLAIMANT & RESPONDENTS 1 & 2** 1 PRASANTH FORMERLY R/A.THENI DISTRICT, PERIYAKULAM TALUK, MARIYAMMAN KOVIL, TAMIL NADU, NOW R/A.LALU'S HOUSE, (RENTED), MAJOR ROAD, NEAR WELCARE HOSPITAL, VYTTILA P.O,COCHIN-682019. 2 SUMINA JAMES THEKKUMPURATH HOUSE, KARITHALA ROAD, MANORAMA JUNCTION, PANAMPILLY NAGAR.P.O, COCHIN, PIN682016. 3 E A JAMES S/O.AVARACHAN, VALIYAMARATHINKAL HOUSE, VADAKKUMPURAM, GOTHURUTH P.O,PIN-683516. BY ADVS. SRI.K.A.SEBASTIAN SRI.ABRAHAM P.GEORGE SMT.M.SANTHY SRI.M.P.JAYAN SC, SMT.K.S.SANTHI FOR APPELLANT THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2021, THE COURT ON 22.11.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.316/2013 2 ## **“CR”** ## _**A. BADHARUDEEN, J.**_ ================================ _M.A.C.A No.316 of 2013_ ================================ _Dated this the 22[nd] day of November, 2021_ ## _**J U D G M E N T**_ This appeal emanates by way of challenge against award in O.P(MV).No.1158/2008 dated 27.04.2012 on the file of the Motor Accident Claims Tribunal, Ernakulam at the instance of the original 3rd respondent M/s.Reliance General Insurance Company Ltd. The respondents herein are the minor petitioner as well as original respondents 1 and 2 before the Tribunal. 2. The appellant herein is aggrieved in the matter of disallowing exoneration from liability, after holding that the st herein was a original petitioner/1 respondent gratuitous passenger in a goods autorickshaw. **==> picture [37 x 56] intentionally omitted <==** 3. Heard both sides. 4. It is argued by the learned counsel for the appellant M.A.C.A.No.316/2013 3 that the Tribunal negatived the contention raised by the Insurance Company to grant full exoneration without rationale though the 1st respondent/original petitioner was travelling in the goods autorickshaw involved in the accident, after sharing the seat of the driver as a gratuitous passenger. It is submitted by the learned counsel for the appellant further that the Tribunal also found that the injured would not cover under the terms of policy being a gratuitous passenger in a goods autorickshaw. At the same time, the Tribunal directed the insurance company to deposit the same and recover the same from the owner of the vehicle. 5. The above finding of the Tribunal is mainly under challenge in this appeal. 6. While addressing the above issue, it is necessary to have a glimpse on the facts of this case. In fact, a minor aged 14 years, who sat near the driver's seat of a goods autorickshaw bearing Registration No.KL 7BD 2739, sustained injuries when the autorickshaw overturned due to the rash and negligent driving M.A.C.A.No.316/2013 4 of the 2nd respondent, the driver of the goods autorickshaw. 7. The insurance company filed written statement and resisted the contentions raised by the petitioner. A specific contention was raised in the written statement to the effect that the petitioner/injured was a gratuitous passenger in a goods vehicle and therefore he was not covered under the policy. 8. The Tribunal after examining PW1, marking Exts.A1 to A17 and X1, awarded Rs.1,89,052/- as against claim of Rs.2,50,000/-. Thereafter, in para.9 of the award the Tribunal, after referring Ext.A16 copy of first information statement led to registration of Crime No.7184/2007 of Kochi City Traffic Police Station led to filing of Ext.A2 charge sheet, it was observed that at no stretch of imagination the court could endorse the case of the claimant that he was travelling in the autorickshaw as a headload worker for loading or unloading any material and in such circumstances, especially the claimant was an 8th std. student at Tamil Nadu during the time of accident. It was further observed by the Tribunal that the 1st respondent, the owner of the M.A.C.A.No.316/2013 5 vehicle, did not turn up and accordingly the Tribunal held that the claimant minor boy was taken for a ride in the goods autorickshaw and therefore the risk of the minor was not covered by the terms of the policy marked as Ext.A6. 9. Nothing argued from the side of the respondents in this appeal to substantiate that the above finding of the Tribunal is wrong. 10. While evaluating the pleadings and evidence in this case to ascertain the status of the minor in the goods autorickshaw, it could be gathered from para.28 of the original petition that the minor petitioner sat near driver's seat of the goods autorickshaw bearing Reg.No.KL 7BD 2739 which was proceeding to Ernakulam from a godown at Eroor to Broadway, Ernakulam along the Sahodaran Ayyappan road for the purpose of unloading goods from the autorickshaw. Thus the claimant put up a case that he shared the seat of the goods autorickshaw driver for the purpose of unloading goods. The minor filed proof affidavit and reiterated the contentions in the petition to the effect M.A.C.A.No.316/2013 6 that the minor travelled in the goods autorickshaw to unload goods. Minor got examined as PW1. When he was cross examined, he stated that he travelled in the autorickshaw as invited by James sir and he was studying in 8th std. in Tamil Nadu during the relevant time. He would say further that he travelled in the autorickshaw for the purpose of purchasing the goods. Thus it appears that the evidence of PW1 in the chief affidavit is contrary to his evidence during the cross examination. To be more explicit, his evidence during chief examination is that he travelled in the goods autorickshaw after sharing the seat of the driver to unload goods. But during cross examination, he would say that he travelled in the autorickshaw to purchase goods. Admittedly, the claimant was aged 14 years and he was studying in 8th std. at the relevant time of accident in Tamil Nadu. Therefore, the finding of the Tribunal negativing the case put up by the claimant that he had been travelling in the goods autorickshaw accompanying the goods to unload the same, cannot be faulted. M.A.C.A.No.316/2013 7 11. Now the question is whether in such a case pay and recovery is liable to be ordered instead of granting full exoneration. In this case reference to Sections 147 of the Motor Vehicles Act is necessary and the same is extracted here under: _"147. Requirements of policies and limits of liability. (1) In order to comply the requirements of this Chapter, a policy of insurance must be a policy whicha) is issued by a person who is an authorized insurer; and b) insures the person or classes of persons specified in the policy to extent specified in sub section (2) - i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:_ _Provided that a policy shall not be required - (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under Workmen's Compensation Act, 1923, (8 of 1923) in respect of the death of, or bodily injury to, any such - employee (a) engaged in driving the vehicle, or_ M.A.C.A.No.316/2013 8 _(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or_ _(c) if it is a goods carriage, being carried in the vehicle, or_ _(ii) to cover any contractual liability._ _Explanation. For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.”_ 12. After reading Section 147 of the Motor Vehicles Act, it is necessary to have a glimpse on judicial pronouncements relevant on this question, while interpreting Section 147 of the Motor Vehicles Act. In [2003 (1) KLT 165 (SC)], _**New India Assurance Co. Ltd v. Asha Rani,**_ the question raised was whether the insurer is liable to pay compensation to the dependents of a deceased passenger while the deceased was travelling in a goods vehicle. In that case the vehicle met with an accident, on account of which the passenger died. The Supreme Court after considering the relevant issues held as under: _“In Satpal's case (AIR 2000 SC 235) the Court assumed that the provisions of S.95(1) of Motor Vehicles Act, 1939 are identical with S.147(1) of the Motor Vehicles Act,_ M.A.C.A.No.316/2013 9 _1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorized representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorized representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amendment Act of 1994 is examined, particularly S.46 of Act 6 of 1994 by which expression 'injury to any person' in the original Act stood substituted by the expression 'injury to any person including owner of the goods or his authorized representative carried in the vehicle' the conclusion is irresistible that prior to the aforesaid amendment Act of 1994, even if widest interpretation is given to the expression 'to any person' it will not cover either the owner of the goods or his authorized representative being carried in the vehicle. The objects and reasons of Cl.46 also states that it seeks to amend S.147 to include owner of the goods or his authorized representative carried in the vehicle for the purposes of liability under the insurance policy. It is no doubt true that sometimes the Legislature amends the law by way of amplification and clarification of and inherent position which is there in the statute, but a plain meaning being given to the words used 1 in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression 'including owner of the goods or his authorized representative carried in the vehicle' which was added to the pre-existed expression 'injury to any person' is either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the Legislature wanted to bring within the sweep of S.147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorized representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. The judgment of this Court in Satpal's case, therefore must be held to have not been correctly decided and the impugned judgment of the tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed It is held that the_ M.A.C.A.No.316/2013 10 _insurer will not be liable for paying compensation to the owner of goods or his authorized representative on being carried in a goods vehicle when that meets with an accident and the owner of goods or his representative dies or suffers any bodily injury._ _The changes made by substitution of S.147 of the Act by S.46 of the Act 54 of 1994 (w.e.f 14.11.1994) was considered by the Supreme Court in the above decision.”_ 13. The Apex Court in [AIR 2003 SC 3093], _**National Insurance Co. Ltd. v. Ajit Kumar and others**_ also considered the ratio in [AIR 2000 SC 235], _**New India Assurance Co. Ltd. v. Satpal Singh**_ and found that it has no application after the amendment of S.147 of the MV Act. In [2004 (3) KLT 397], _**National Insurance Co. Ltd. v. Chinnamma,**_ three Bench Judges of the Apex Court, considered the question as to whether the owner of goods travelling in a trailer attached to the tractor was entitled to the insurance coverage before the amendment of S.147 of the MV Act. It was answered that an insurance for an owner of the goods or his authorized representative travelling in a vehicle became compulsory only with effect from 14.11.1994, i.e., from the date of coming into force of amending Act 54 of 1994. The Apex Court considered the question whether a person who hired a goods carriage would come within the purview of M.A.C.A.No.316/2013 11 S.147(1) of the MV Act although no goods as such were carried in the vehicle at the time of accident. Though this Court had taken a view in this case that such a person also will be covered under S.147(1) of the Act, that decision was challenged before the Supreme Court and the Supreme Court held otherwise. 14. Again in [2008 (4) KLT 552 (SC)], _**United India Insurance Co. Ltd. v. Suresh**_ when the Apex Court considered the question whether a person who hired a goods vehicle would come within the purview of S.147(1) of the Act, although no goods were being carried at the time of the accident. In this decision the Apex Court reiterated the legal position as laid down in [2004 (1) KLT 938 (SC) = 2004 (2) SCC 1], _**National Insurance Co. Ltd. v. Baljit Kaur**_ that the term "any person” envisaged under S.147(1)(b)(i) shall not include any gratuitous passenger, it was held that if the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of insurance. To put it differently, no gratuitous passenger can be allowed to travel in a goods vehicle and not M.A.C.A.No.316/2013 12 even the owner of the vehicle can share the seat of the driver in a goods autorickshaw. 15. Thus, law is no more _res integra_ on the point that, if the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of insurance. 16. In the three bench decision in _**Baljit Kaur**_ 's case ( _supra_ ) also while summarizing the legal position, the Honourable Supreme Court held as under: _“21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the laws was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh ((2000) 1 SCC 237). The said decision has been overruled only in Asha Rani (2003 (1) KLT 165 (SC)). We, therefore, are of the opinion that the interest of justice will be sub-served if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of S.168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the tribunal in such a proceeding.”_ M.A.C.A.No.316/2013 13 17. Here as per Ext.A4, copy of R.C Book, seating capacity provided is 3. As per Ext.A6 policy also, licenced carrying capacity including ddDd driver was 3. It is argued by the learned counsel for the insurance company that though 3 is the seating capacity of the Force Minidor vehicle having gross weight 1350 kg., the other 2 persons excluding the driver must be persons accompanying the goods and not otherwise. Going by the narration in the policy, no such inference could be drawn. It is not in dispute that the decisions discussed above, particularly, in _**Baljit Kaur**_ 's case ( _supra_ ), the Honourable Supreme Court held that “any person” envisaged under Section 147(1)(b)(i) shall not include any gratuitous passenger and no gratuitous passenger could be allowed to travel in a goods vehicle and not even the owner of the vehicle could share seat of the driver in a goods autorickshaw. Here the status of the petitioner already found as a gratuitous passenger and therefore the company has no liability to indemnify the insured and as such the company is entitled to M.A.C.A.No.316/2013 14 get exoneration from liability. In view of the matter, this appeal succeeds. 18. Resultantly, it is ordered that the Insurance Company is not liable to pay the amount and the liability is upon the owner of the vehicle. Accordingly, the pay and recovery right ordered against the appellant insurance company is set aside and the appellant is exonerated from liability. Thus it is held that the 2nd respondent, the owner of the vehicle, is liable to pay the award amount granted by the Tribunal in this case. In the result, this appeal is allowed as indicated above. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_