The National Insurance Company Ltd. v. Mary and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. T. Sankaran
M. L. Joseph Francis
Judgment Date: 2012-11-02
Court Decision / Holding: The appeal is dismissed as it is without merits; the Tribunal’s award of ₹1,93,000 plus interest stands and the insurer remains liable to deposit the amount.
Final Disposition: Appeal dismissed; Tribunal's award upheld; insurer to deposit amount; no order as to costs.

Parties to the Case

Appellants / Petitioners

The National Insurance Company Ltd.

Respondents

MARY
UNNI
MOLY
JOSEPH
BABY
PIEOUS
JOHNSON
JUSTIN
C.R.SALEESHKUMAR
BIJU K.K.

Legal Representation & Advocates

Counsels for Petitioners

• Sri Lal George

Counsels for Respondents

• K.M. Jamaludeen
• Smt. Latha Prabhakaran

Case Synopsis & Summary

On 30.12.2001, Joy, along with others, was travelling in a mini bus on the Paliyekkara–Mannuthy National Highway when the vehicle, driven by the second respondent, allegedly lost control and struck a stationary tempo van. Joy died and other passengers sustained injuries. The petitioners—Joy’s mother, brothers and sisters—claimed ₹4,00,000 as compensation under the Motor Vehicles Act. The third respondent, the insurer, admitted the policy but contended that Joy was employed as a cleaner in the insured bus and that no premium had been paid to cover cleaners, so the insurer should not be liable. The Tribunal consolidated this petition with others, heard Exts. A1–A16, and, without evidence from the insurer, awarded ₹1,93,000 with 7% interest from the date of filing. It found the accident due to the driver’s negligence and held that the evidence did not prove the deceased was a cleaner; it fixed monthly income at ₹3,000, applied a multiplier of 5, deducted personal expenses, and awarded amounts for loss of dependency, loss of estate, funeral expenses, pain and suffering, and loss of love and affection. The insurer challenged liability, citing Rajan v. Pravith and Ramashray Singh to argue cleaners are not covered unless premium is paid. The High Court, noting the appellant’s contentions and the lack of policy copy, dismissed the appeal as without merits and affirmed the Tribunal’s award, directing deposit of the amount.

Provisions of Law Cited

Motor Vehicles Act, Section 147

Submissions & Arguments

Contentions of Appellants / Petitioners

The learned counsel for the appellant contended that the deceased was a cleaner in the insured bus and hence not covered under Section 147 of the MV Act or the policy; no premium was paid for cleaner coverage; relied on Ramashray Singh v. New India Insurance Co. Ltd. (AIR 2003 SC 2877) and Rajan v. Pravith (2009(3) KLT 939) to argue insurer’s non-liability and that the policy copy was not produced to show coverage.

Contentions of Respondents

The respondents supported the Tribunal’s findings and argued that the policy should cover the driver and conductor; contested the insurer’s contention; argued the evidence failed to prove the deceased was a cleaner; challenged the insurer’s liability based on policy and premium omissions.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ramashray Singh v. New India Insurance Company Ltd.	AIR 2003 SC 2877	Mentioned Only	Cited as a decision considered by the Apex Court regarding cleaner coverage; no binding application in this judgment.
Rajan v. Pravith	2009(3) KLT 939	Mentioned Only	Cited to support the proposition that a cleaner in a bus may not be covered unless additional premium is paid; the court does not expressly adopt or overrule in the present dispute.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 2ND DAY OF NOVEMBER 2012/11TH KARTHIKA 1934 MACA.No. 919 of 2011 ( ) -----------------------OPMV.1294/2003 of ADDL.M.A.C.T., TRICHUR APPELLANT(S)/R3 IN OPMV: ------------------------------------- THE NATIONAL INSURANCE COMPANY LTD., PALARIVATTOM BRANCH, MYDHILY, MANDIRAM JANATHA JUNCTION, PALARIVATTAM KOCHI-682025, REPRESENTED BY ITS MANAGER REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENT(S)/PETITIONERS 1-8 AND R9 & 10 IN OPMV: -------------------------------------------------------------------------------- 1. MARY, AGED 60 YEARS, W/O.ANTHAPPAN, KANNAMPILLY HOUSE, CHALIKKAVATTAM, VENNALA P.O. COCHIN-682028. 2. UNNI, AGED 42 YEARS, S/O.ANTHAPPAN, KANNAMPILLY HOUSE, CHALIKKAVATTAM, VENNALA P.O. COCHIN-682028. 3. MOLY, AGED 41 YEARS, W/O.DEVASSY, KANNAMPILLY HOUSE, CHALIKKAVATTAM, VENNALA P.O. COCHIN-682028. 4. JOSEPH, AGED 39 YEARS, W/O.JOHN, KAKKANAD P.O., ATHANI, ERNAKULAM-682030. 5. BABY, AGED 37 YEARS, W/O.CHARLY, ASARIPARAMBIL HOUSE, CHUVELI NAGAR CHALIKKAVATTAM-682028. 6. PIEOUS, AGED 35 YEARS, S/O.ANTHAPPAN, KANNAMPILLY HOUSE, PADIVATTAM ROAD, CHALIKKAVATTAM VENNALA P.O., COCHIN-682028. 7. JOHNSON, AGED 33 YEARS, S/O.ANTHAPPAN,, AGED 8 YEARS KANNAMPILLY HOUSE, PADIVATTAM ROAD, CHALIKKAVATTAM VENNALA P.O., COCHIN-682028. 8. JUSTIN, AGED 25 YEARS, S/O.ANTHAPPAN, KANNAMPILLY HOUSE, PADIVATTAM ROAD, CHALIKKAVATTAM VENNALA P.O., COCHIN-682028. 9. C.R.SALEESHKUMAR, S/O.RAGHAVAN, CHANIYIL, KUMBALAM P.O., ERNAKULAM-682034. 10. BIJU K.K., S/O.KALESAN V.A., KUTTAMPURATH, COCHIN-682013. R,R1-8 BY ADV. SRI.K.M.JAMALUDHEEN R,R1-8 BY ADV. SMT.LATHA PRABHAKARAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2012, THE COURT ON 2-11-2012 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.A.C.A. No.919 of 2011 ----------------------------------------------Dated 2[nd] November, 2012. J U D G M E N T** ## **Joseph Francis, J.** This appeal is filed by the third respondent/Insurance Company in O.P.(MV) No.1294 of 2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. 2. The case of the petitioners in the O.P.(MV) is as follows : On 30.12.2001 while deceased Joy along with others were travelling in a mini bus bearing Registration No.KL-01-C6768 through Paliyekkara - Mannuthy National Highway and when it reached at Mannuthy bypass Junction, the 2[nd] respondent, who was the driver of the mini bus had lost his control over the vehicle and hit behind a stationary tempo van, as a result of which, deceased Joy sustained injuries and he succumbed to the injuries. The other passengers also sustained severe injuries. According to the petitioners, the incident happened because of the negligence of the 2[nd] respondent, who was the driver of the mini bus. At the time of accident, 1[st] respondent was the owner of the mini bus and it was insured with the third respondent. 2 M.A.C.A. No.919 of 2011 3. The petitioners are the mother, brothers and sisters of deceased Joy. They claimed `4,00,000/- as compensation. Respondents 1 and 2 remained ex parte. The third respondent filed written statement admitting the insurance policy of the mini bus and contended that since the deceased was a cleaner and as no premium was collected for extending the liability towards cleaner, the third respondent is not at all liable to indemnify the insured and further contended that the compensation claimed is excessive. 4. The Tribunal jointly tried O.P.(MV) No.1294 of 2003 along with other connected Original Petitions (MV) and evidence was taken in O.P.(MV) No.1294 of 2003. Exts.A1 to A16 were marked on the side of the petitioners. No evidence was adduced from the side of the third respondent. The Tribunal, on considering the evidence on record, found that the accident was due to the negligence of the second respondent and awarded a compensation of `1,93,000/- to the petitioners in O.P.(MV) No.1294 of 2003 together with interest at the rate of 7% per annum from the date of filing of the Original Petition 3 M.A.C.A. No.919 of 2011 till the date of realization and the third respondent was directed to deposit the amount as the insurer. Against that award, the third respondent/Insurance Company filed this appeal. 5. At the time of argument, the learned counsel for the appellant raised the following contentions : As per the averments made in the claim petition, the deceased was employed as cleaner in the insured bus. The Tribunal ought to have found that the cleaner/helper in a bus is not covered under Section 147 of the Motor Vehicles Act as well as under the terms and conditions of policy. This question has been considered by the Apex Court in the decision reported in Ramashray Singh v. New India Insurance Company Ltd. (AIR 2003 SC 2877). 6. The learned counsel for the appellant invited our attention to the decision reported in Rajan v. Pravith (2009(3) KLT 939), in which it was held that a person working as a cleaner in a bus cannot file a claim petition claiming as a third party and the insurer is not liable when no additional premium has been paid for cleaner. The learned counsel for the 4 M.A.C.A. No.919 of 2011 appellant submitted that no additional premium has been collected to give coverage to the cleaner of the bus. As per the provisions of the Motor Vehicles Act, driver and conductor of the bus alone are covered. The learned Tribunal has not considered this aspect of the issue. The learned counsel for the respondents 1 to 8 supported the award. ## 7. The Tribunal awarded compensation under various heads as follows : ||**_Head_**|**_Amount awarded (Rs)_**| |---|---|---| |1|Compensation for loss of dependency|120000| |2|Compensation for loss of estate|15000| |3|Compensation for loss of expectation|15000| |4|Transportation expenses|5000| |5|Damage to clothing and other articles|1000| |6|Funeral expenses|7000| |7|Compensation for pain and suffering|20000| |8|Compensation for loss of love and affection|10000| ||Total|193000| 8. The Tribunal found that there is no evidence to prove that deceased was working as a helper-cum-cleaner in the mini bus. Considering the age and the fact that the accident was in the year 2001, the Tribunal fixed the monthly M.A.C.A. No.919 of 2011 5 income of the deceased as `3,000/-. The Tribunal deducted 1/3 towards the personal expenses of the deceased and fixed `2,000/- as the monthly contribution to the family. The first petitioner was aged 60 years at the time of accident and therefore, the Tribunal rightly took the multiplier as '5' and awarded `1,20,000/- as the compensation for loss of dependency. In the appeal, the appellant is not challenging the quantum of compensation, but challenging only the liability imposed on the appellant as the insurer. In this case, the Insurance Company did not produce the policy copy before the Tribunal or before this Court. In the absence of the policy copy, it is not possible to say whether the Insurance Company can claim exoneration from the liability. Moreover, in the written statement filed by the third respondent, it was stated that the deceased was not a helper by profession under the employment of the first respondent. For the aforesaid reasons, we are of the view that this appeal is liable to the dismissed, as it is without any merits. Accordingly, this appeal is dismissed as it is without 6 M.A.C.A. No.919 of 2011 any merits. There is no order as to costs. Sd/- **K.T.SANKARAN, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)