High Court of KeralaSingle Judge2010-12-22Appeals disposed; insurance coverage restricted...

The Oriental Insurance Co. Ltd. v. Selvaraj, Soman B. and Murukan (on behalf of nine claimants) & others

Case / Petition Number:MACA.No.3 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M.N.Krishnan
Judgment Date: 2010-12-22
Court Decision / Holding: Appeals disposed of with a finding that the coverage under Section 147(1)(b)(i) is limited to a single owner or representative of the goods (not multiple persons). The court directed that the Motor Accidents Claims Tribunal take the highest award in the batch (Rs. 50,632) and determine proportionate payment among the claimants, with the balance of liability cast on the owner of the vehicle, thereby applying the Anjana Shyam principle in proportionate terms while not extending to all travellers as owners/representatives.
Final Disposition: Appeals disposed; insurance coverage restricted to a single owner/representative; highest award used as base for proportionate payment; balance liability on vehicle owner.

Parties to the Case

Appellants / Petitioners

The Oriental Insurance Co. Ltd.

Respondents

Selvaraj, S/O Antony, Vedayantennada Purayidom, Pallom, Pullu vila P.O., Karumkulam, Neyyattinkara Taluk, Thiruvananthapuram District
Soman B., Santhosh Bhavan, Karumulam, Puthi yathura P.O., Neyyattinkara Taluk, Thiruvananthapuram District
Murukan, S/O Bhaskaran, Kayyala Valanji Varuthattu Puthen Veedu, Kazhuvoor, Kanjiramkulam, Neyyattinkara Taluk, Thiruvananthapuram District

Legal Representation & Advocates

Counsels for Petitioners

• Adv. George Cherian (Thiruvalla)

Counsels for Respondents

• Adv. M.R. Sarin
• Adv. Santheep Ankarath
• Adv. V.C. Madhavankutty

Case Synopsis & Summary

Nine claimants travelling with their goods in a goods vehicle filed MACA appeals against awards of the Motor Accidents Claims Tribunal Neyyattinkara. The claimants asserted they were owners or authorized representatives of the goods carried in the vehicle and thus covered under Section 147(1)(b)(i) of the Motor Vehicles Act, as amended. The Tribunal held that the claimants were travelling as owners of the goods and that the policy could cover three persons, applying proportional liability and casting the remainder on the vehicle owner, relying on National Insurance Co. Ltd. v. Anjana Shyam. The insurance company argued that the claimants were not employees and that only two persons could be insured under the policy; they emphasized that Section 147(1)(b)(i) contemplates coverage for a single owner or representative and not multiple persons. They also relied on New India Assurance Co. Ltd. v. Asha Rani to note that post-amendment coverage exists, but not for multitudes, and cited the Oriental Insurance Co. Ltd v. Mahaswari decision to illustrate restrictive precedents. The Kerala High Court ultimately held that the singular owner/representative interpretation should apply, rejected broad coverage for all nine travellers, and directed that the highest award (Rs.50,632) be used as a base for proportionate payment by the insurer, with the remaining liability to be borne by the vehicle owner, effectively disposing of the appeals with a partial relief for claimants.

Provisions of Law Cited

Section 147(1)(b)(i) of the Motor Vehicles Act, 1988Amendment Act 54 of 1994 (amending the Motor Vehicles Act)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant/insurance company argued that the nine travellers were not employees and were not covered by the policy. They asserted that the policy covers only two employees and that the claimants were gratuitous passengers. They contended that Section 147(1)(b)(i) contemplates cover for a singular owner or representative of the goods carried in a vehicle, not multiple persons, and argued the Tribunal’s three-person coverage was unsustainable. They relied on the old Motor Vehicles Act, the amendment (Act 54 of 1994) confirming extended coverage to the owner/representative, and cited Asha Rani to support that coverage exists post-amendment, but not for multi-person owners. They urged that the Anjana Shyam principle of proportional liability should be applied with the insurer paying the proportionate amount and the balance cast on the vehicle owner, and cited Mahaswari to illustrate restrictive precedents.

Contentions of Respondents

The claimants contended that nine persons travelled with their goods in the goods vehicle and were either owners or authorized representatives of those goods, or otherwise covered under the policy’s terms. They argued that Section 147(1)(b)(i), as amended, extends coverage to the owner/representative of goods carried, and that the policy’s practical operation should allow coverage for all such persons as necessary for the transport of the goods. They pressed for full compensation to all nine and invoked Anjana Shyam to justify proportional liability, although they acknowledged the court would need to apply proportion based on the highest award among the batch, with liability distributed accordingly.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
New India Assurance Co. Ltd. v. Asha Rani	2003 (1) KLT 165	Positive	Post-amendment coverage under Section 147(1)(b)(i) extended to owners/representatives of goods carried in a vehicle; supports the view that coverage exists after amendment.
National Insurance Co. Ltd. v. Anjana Shyam	2007 (3) KLT 993 (SC)	Positive	Principle of proportional liability and use of the highest award as base for distribution; applied by the court in this case.
Oriental Insurance Co. Ltd v. Mahaswari	2006 (3) TAC 565 (HP HC)	Distinguished	HP High Court held insurer not liable for all travellers; used as persuasive authority but distinguished in the present Kerala case.

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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 M.N.KRISHNAN** **WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932** **MACA.No. 3 of 2010()** **-----------------------------OPMV.1292/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA** **....................** ## **APPELLANT/3RD RESPONDENT** **-----------------------------------------------** **THE ORIENTAL INSURANCE CO.LTD., THIRUVANANTHAPURAM. REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **RESPONDENT/CLAIMANT/RESPONDENTS/RESPONDENTS 1 & 2;** **----------------------------------------------------------------------------------------------** **1. SELVARAJ, S/O.ANTONY, VEDAYANTENADA PURAYIDOM, PALLOM, PULLUVILA P.O., KARUMKULAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** **2. SOMAN. B., SANTHOSH BHAVAN, KARUMKULAM, PUTHIYATHURA P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** **3. MURUKAN, S/O.BHASKARAN, KAYYALAVALANJI VARUTHATTU PUTHEN VEEDU, KAZHUVOOR, KANJIRAMKULAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DIST.** **R2 BY ADV. SRI.M.R.SARIN. R3 BY ADV. SRI.SANTHEEP ANKARATH, SRI.V.C.MADHAVANKUTTY.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2010, ALONG WITH MACA NO. 4 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** **MACA.No. 3 of 2010** ## **ORDER ON I.A. NO.4/2010 IN M.A.C.A. NO.3/2010** ## **DISMISSED** ## **22/12/2010.** **SD/- M.N.KRISHNAN, JUDGE** **//TRUE COPY//** **P.A. TO JUDGE** **rs** ## **M.N. KRISHNAN, J.** ........................................... M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 ............................................. Dated this the 22[nd] day of December, 2010. ## **JUDGMENT** All these appeals are preferred by the insurance company against the award of the Claims Tribunal Neyyattinkara in OP (MVNos.1292/04,1250/04,1251/04, 1252/04, 1253/04, 1254/04, 1261/04,1294/04 and 1295/2004. 2. The brief facts that require consideration in these appeals are that it is the case of the claimants that they had hired a vehicle and was travelling in the vehicle along with their goods for the purpose of fishing and therefore they were owners of the goods accompanying the goods and therefore they are statutorily covered under Section 147(1) (b)(i) of the Motor Vehicles Act. 3. The insurance company would contend that those persons are not covered for the reason that they were all travelling in large numbers and they were not owners of the goods and they were only gratuitous passengers and therefore they are not liable to be covered. The insurance company also would contend that the policy covers the risk : 2 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 of two persons as employees and as admittedly the claimants are not the employees of the insured, they are not liable to indemnify them. 4. The learned Tribunal on a consideration of the materials held that the persons were travelling as the owners of the goods carried in the vehicle. Since there is a condition in the policy to cover three persons, three of such persons can be covered and thereafter applied the principles of **National Insurance Co. Ltd. v. Anjana Shyam** [(2007 (3) KLT 993 (SC)] and directed the insurance company to satisfy the highest of the three awards in proportion of all the claims and cast the rest of the liability on the owner of the vehicle. 5. The first point to be considered is whether the policy covers by virtue of payment of premium of these persons. Admittedly they are not the employees of the insured. So as employees of the insured, they will not get any coverage and that point has to be answered in favour of the insurance company. 6. Then the next point is regarding the coverage under Section 147(1)(b)(i) which reads as follows: : 3 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 “Against any liability which may be incurred by him in respect of the death 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”. Section 147(1)(b)(i) was incorporated by the amendment Act 54 of 1994 which came into force on 14.11.1994. The coverage of the owner of the goods or representative of the owner of the goods carried in the vehicle was considered by the Hon'ble Supreme Court in **New India Assurance Co. Ltd. v. Asha Rani** (2003 (1) KLT 165) and the Supreme Court held that under the provisions of the old Motor Vehicles Act and till the amendment of the Motor Vehicles Act by Act 54 of 1994, such persons were not statutorily covered. But the Supreme Court made it clear that those persons will be covered by virtue of the amended provision under Act 54 of 1994. 7. The next point argued by the learned counsel for the insurance company is that they were only gratuitous passengers. I am afraid that I cannot accept that contention for the reason that these nine persons appear to be have : 4 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 jointly hired a vehicle for the purpose of proceeding to the place of fishing and they were travelling with their nets etc and therefore they were travelling in the lorry along with their goods. The question to be considered is whether all such persons can be covered under Section 147(1)(b)(i) of the Motor Vehicles Act. I may refer to the decision of the Himachal Pradesh High Court reported in **Oriental Insurance Co. Ltd v. Mahaswari** (2006 (3) TAC 565) wherein it was a case where 52 persons were carried in a truck which met with an accident, out of which 18 died. The said court held that in the light of the definition of the 'goods carriage' etc insurance company cannot be fastened with the liability. 8. The next question to be considered is whether all these persons can be roped in as owners of the goods. It has to be specifically remembered that Section 147(1)(b)(i) very carefully uses the word injury to any person including owner of the goods or his authorised representative carried in the vehicle. So what is contemplated under this section is to cover one person who can be either the owner or the representative of the owner. The section does not : 5 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 contemplate the situation where number of persons to be carried in a goods vehicle. It is basically for the reason that in a goods carriage, normally over and above the driver, there will be an employee who will be proceeding. Capacity of the cabin will be limited. Therefore in such cases, the legislature in its wisdom thought that the person namely the owner or his representative can be covered. The legislature was very careful when it uses the word owner or the representative of the owner of the goods. It never incorporated the word owner or the representatives of the owner of the goods. Therefore it was only a singular person that was contemplated to be covered under the provisions of the Motor Vehicles Act under Section 147(1)(b)(i). 9. Therefore even if large number of persons travel in a vehicle taking their goods, all of them cannot be treated as persons covered under the provisions of the Act. So in such a situation, I hold that the coverage of three persons cannot be permitted as done by the Tribunal because the coverage is for the employees of the insured who are basically not these persons and owner or representative of the owner of the goods can be one and only such person can : 6 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 be covered. Therefore the contention of the claimants that all the persons travelling in the cabin have to be covered cannot be accepted in the light of the singular used in Section 147(1)(b)(i). So the coverage of three persons as owner could not be applied. The principle laid down in **Anjana Shyam** 's case can be extended and applied to the case by taking the highest one award passed in these batch of cases and then directing the insurance company to pay the amount in proportion and thereafter cast the entire liability on the owner of the vehicle. So all these appeals are disposed of as follows: The Motor Accidents Claims Tribunal is directed to take the highest of the award amount that is Rs.50,632/= and work out the proportion in accordance with **Anjana Shyam** 's case and thereafter direct the owner of the vehicle to pay the balance compensation as envisaged by law . ## **M.N. KRISHNAN, JUDGE.** ## **cl** : 7 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 **M.N. KRISHNAN, J.** ........................................... A.S.NO.883 OF 1996 ............................................. 13[th] day of August, 2010. **J U D G M E N T**