High Court of KeralaDivision Bench2011-03-23RP allowed; Judgment in MACA 713/2003 reviewed ...

Saju P. Paul v. The Manager, National Insurance Company Limited and Others

Case / Petition Number:RP.106/2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.K. Basheer
P.Q. Barkath Ali
Judgment Date: 2011-03-23
Court Decision / Holding: The Review Petition is allowed. The judgment in MACA No.713 of 2003 is reviewed and modified. It is held that the Insurance Company is liable to pay the compensation as held by the Tribunal. Consequently, MACA No.713/2003 is dismissed.
Final Disposition: RP allowed; Judgment in MACA 713/2003 reviewed and modified; Insurance Company held liable to pay Tribunal’s compensation; MACA 713/2003 dismissed.

Parties to the Case

Appellants / Petitioners

Saju P. Paul

Respondents

The Manager, National Insurance Company Limited, Uthradam Buildings, 1st Floor, Kottarakkara, represented by its Assistant Manager, Motor Third Party Claims Section, Ajay Vihar, M.G. Road, Ernakulam -16.
Jayakumar M.K. Karackal House, Kochandy, Angamoozhi P.O., Pathanamthitta-689645 (Deleted)
C. Sivanandan, S/O. Chellappan, Poovathuthottathil Veedu, Kayila Mylodu, Pooyappally, Kottarakkara, Kollam District, PIN-691537

Legal Representation & Advocates

Counsels for Petitioners

• Sajeev Kumar K. Gopal

Counsels for Respondents

• Lal George

Case Synopsis & Summary

This High Court review petition challenges an earlier Motor Accidents Claims Tribunal order that awarded the claimant Rs. 2,88,000 with interest for injuries sustained in a road accident involving a goods vehicle. The tribunal had directed the insurer to indemnify the vehicle’s owner. On appeal, the Division Bench exonerated the insurance company, holding the claimant to be a gratuitous passenger and thus not eligible for compensation from the insurer. The review petitioner contends that he was not a mere gratuitous passenger but a spare driver employed by the insured, travelling in the cabin with the driver to the worksite as an authorised representative, and therefore should be covered by the policy. He asserts that his employment status and the circumstances of travel bring him within the insurer’s liability under Section 147 of the Motor Vehicles Act, including the first proviso. The court’s review of the record notes the petitioner’s deposition confirming that he travelled in the cabin at the employer’s instruction. The bench ultimately allows the review petition, revises the earlier judgment, and holds the Insurance Company liable to pay the tribunal’s award as directed, while dismissing MACA 713/2003. The decision emphasizes factual distinctions over a blanket reliance on earlier precedents about gratuitous passengers.

Provisions of Law Cited

Motor Vehicles Act – Section 147 (1); First proviso to Section 147(1)Motor Vehicles Act – Section 147(1)(b)(i)Workmen's Compensation Act, 1923 (8 of 1923)

Submissions & Arguments

Contentions of Appellants / Petitioners

The review petitioner contends that he was employed as a spare driver by the insured and was travelling in the cabin with the driver to the worksite as an authorised representative. He asserts he was engaged in employment duties at the time of the accident, and that the policy under Section 147(1) covers liability to such personnel. He argues that the tribunal’s award should not have been negatived for being a gratuitous passenger and that the insurer must indemnify the owner as per the first proviso to Section 147(1). He relies on the factual position that his deposition indicated he worked for the insured and that other workers in similar circumstances were treated differently in separate petitions, meriting reversal of the exoneration in MACA 713/2003.

Contentions of Respondents

The insurer contends the claimant was a gratuitous passenger not covered by the policy’s indemnity provisions. It argues that the policy excludes liability for injuries to an employee other than those covered under Workmen’s Compensation Act, unless the injury arises in the course of employment and within the policy’s scope; it asserts there was no goods being carried and thus no applicability as an employee under the policy. It cites Union of India Ltd. v. Suresh to support the view that absence of goods negates representative status. It maintains that the earlier judgment exonerating the insurer was correct under the policy terms and prays for dismissal of the review petition to sustain the prior order.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Union of India Ltd. v. Suresh	2008 (4) KLT 552	Distinguished	The court cites this apex court decision to show that, in the absence of goods being carried, the argument of a claimant’s authorised representative status cannot be accepted; however, the present judgment distinguishes this view on the facts, finding the petitioner travelled in the cabin as a spare driver at the employer’s instruction.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 RP.No. 106 of 2011() -------------------AGAINST THE JUDGEMENT IN MACA.713/2003 OPMV.523/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... REVIEW PETITIONER/1ST RESPONDENT IN MACA: SAJU P.PAUL, S/O.P.M.PAULOSE, PLAPPALLIL HOSUE, IKKERNADU SOUTH, KINGINIMATTAM P.O., KUNNATHUNADU TALUK, KOLENCHERRY - 682311. BY ADV. SRI.SAJEEV KUMAR K.GOPAL RESPONDENTS/APPELLANT, RESPONDENTS 2 & 3 IN MACA: 1. THE MANGER, NATIONAL INSURANCE COMPANY LIMITED, UTHRADAM, BUILDINGS, 1ST FLOOR, KOTTARAKKARA, REPRESENTED BY ITS ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIMS SECTION, AJAY VIHAR, M.G.ROAD, ERNKULAM -16. 2. JAYAKUMAR M.K. KARACKAL HOSUE, KOCHANDY, ANGAMOOZHY P.O., PATHANAMTHITTA-689645 (DELETED),THE NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 22-09-2009 IN IA NO.2684/2009 3. C.SIVANANDAN, S/O. CHELLAPPAN, POOVATHUTHOTTATHIL VEEDU, KAYILA MYLODU, POOYAPPALLY, KOTTARAKKARA, KOLLAM DISTRICT, PIN-691537. BY ADV. SRI.LAL GEORGE FOR R1 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P. No. 106 of 2011 in M.A.C.A. No. 713 of 2003-D - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of March, 2011 Order ## Basheer, J: This review petition is at the instance of respondent No.1 in the above appeal. He was the claimant before the Motor Accidents Claims Tribunal. His claim for compensation was allowed by the Tribunal and a sum of Rs.2,88,000/- with 9% interest was awarded to him. The appellant Insurance Company was directed to indemnify the owner of the vehicle, respondent No.3 in the appeal. 2. The above award was challenged in the appeal primarily on the ground that the claimant being a gratuitous passenger in the goods vehicle in question, he was not entitled to get any compensation from the appellantCompany. 3. After hearing the parties, the appeal was allowed by us exonerating the appellant- Insurance Company from the liability. It was however made clear that the claimant would be entitled to recover the amount of compensation from the owner and driver of the vehicle. RP.106/2011 : 2 : 4. It is contended by the review petitioner that while delivering the judgment, this Court has failed to take note of his specific case that he had been travelling in the cabin of the lorry as a representative of his employer, the insurer of the vehicle. The review petitioner had, in his deposition before the Tribunal, categorically stated that he was sitting inside the cabin along with the driver at the time when the accident occurred. He further asserted that he was working as a spare driver under the employer/insured of the vehicle .He was proceeding to the work site as spare driver as instructed by his employer. Significantly the above assertions made by the review petitioner were not controverted or denied by the in the course of cross appellant-Insurance Company examination. More importantly, there was no denial of the fact that petitioner was working at the site of the Company owned by the insurer. 5. The relevant clauses of Section 147 of the Motor Vehicles Act are extracted hereunder: “147. Requirements of policies and limits of liability:--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-- RP.106/2011 : 3 : (a) - - - - - - (b) insures the person or classes of persons specified in the policy to the 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 authorised 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) - - - - - 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 the 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 RP.106/2011 : 4 : (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.” A perusal of the above clauses will unambiguously show that a policy shall cover the liability which may be incurred by the insured in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place. The proviso further elucidates that a policy shall not be required to cover liability in respect of the death arising out of and in the course of employment of an employee or a person insured by the policy holder or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than the liability arising under the Workmens' Compensation Act. 6. It has already been noticed that the petitioner was admittedly a spare driver of the vehicle. It may be true that he was not driving the vehicle at the relevant point of time; but he was directed to go to the worksite by his employer as a RP.106/2011 : 5 : spare driver in the vehicle. Therefore, by no stretch of imagination, it can be said that the petitioner was not travelling in the vehicle in the course of his employment and as directed by his employer. Section 147(1)(b)(i) takes within its fold any liability which may be incurred by the insurer in respect of the death of or bodily injury to any person. Therefore, the argument of the Insurance Company that no goods were being carried in the vehicle at the time of the accident and therefore, the petitioner was only a gratuitous passenger cannot be countenanced at all. Even otherwise, the first proviso to Section 147(1) will cast a liability on the insurer to indemnify the owner in respect of the injury sustained by the employee of the insured arising out of and in the course of his employment. 7. Sri.Lal George learned counsel for respondent No.1 Insurance Company has vehemently contended that going by the decisions relied on by this Court in the judgment which is under review, it cannot be said that the Company would be liable to indemnify the owner. 8. Learned counsel while inviting our attention to the decision of the Apex Court in Union of India Ltd. v. Suresh reported in 2008 (4) KLT 552 reiterates that so long as goods RP.106/2011 : 6 : were not being carried in the vehicle, the argument of the petitioner that he was travelling in the vehicle as the authorised representative cannot be accepted at all. Since there is no dispute that the vehicle involved in the accident was a goods vehicle (It is in fact a lorry), the contention of the petitioner that he had been travelling in the vehicle as a spare driver cannot have any relevance at all, it is contended by the learned counsel. 9. But keeping in view the fact that the petitioner had been travelling in the cabin along with the driver as a spare driver and as instructed by his employer/insurer, we are satisfied that the contention raised by the petitioner merits acceptance. Therefore it is held that respondent No.1Insurance Company shall be liable to indemnify the owner of the vehicle and pay the compensation as directed by the Tribunal. 10. In this context we may place on record the fact that some other workers who were travelling on the platform of the lorry which was proceeding to the worksite had filed claim petitions before the Tribunal claiming compensation from the owner, driver and insurer of the vehicle. But in all those cases respondent No.1 Insurance Company had been RP.106/2011 : 7 : exonerated from the liability on the ground that they were gratuitous passengers as they were being carried in the vehicle in violation of the terms and conditions. For the foregoing reasons, the Review Petition is allowed. The judgment in the appeal is reviewed and modified. It is held that the Insurance Company is liable to pay the compensation as held by the Tribunal. Resultantly, M.A.C.A.No.713/2003 is dismissed. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.