The Oriental Insurance Co. Ltd v Shahul Hameed & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931** **MACA.No. 1025 of 2008()** **-----------------------** ## **OPMV.1092/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** **....................** ## **APPELLANT(S): 3RD RESPONDENT IN THE OP** **-------------------------** **THE ORIENTAL INSURANCE CO. LTD, KUNNAMKULAM, REP. BY THE AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO. LTD, REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. MR.A.R.GEORGE** ## **RESPONDENT(S):CLAIMANT & RESPONDENTS 1 AND 2 IN THE OP** **-------------------------------** **1. SHAHUL HAMEED, S/O. MOHAMMED, KANDANATH HOUSE, AKALAD.P.O, CHAVAKKAD.** **2. MOHAMMED HASHIM, S/O. SAIDU MUHAMMED, ANEERAKKAL HOUSE, THIRUVANTHARA, CHAVAKKAD.** **3. ABDUL AZIZ, S/O. AHEMAD, THAIPPARAMBIL HOUSE, PANCHAVADI, EDAKKAZHIYOOR, PUNNAYUR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2009, ALONG WITH MACA NO. 1028 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **M.N.KRISHNAN, J.** ........................................... M.A.C.A.NOS. 1025 & 1028 OF 2008 ............................................. Dated this the 18[th] day of September, 2009 ## **J U D G M E N T** Both these appeals are preferred against the award of the Claims Tribunal, Trichur in OP(MV)Nos.1092/2001 and 1093/2001. The Tribunal after consideration of the materials passed an award for Rs.46,700/= in OP(MV)No.1093/2001 and Rs.24,400/= in OP(MV)No.1092/2001. The Tribunal also found that the insurance company is liable to pay the amount. The insurance company has challenged the award in these appeals on two grounds namely that the claimants were also gratuitous passengers in a goods vehicle not covered by the policy and therefore, not entitled to get compensation from the insurance company and secondly that there was no valid driving licence for the driver and there must be at least the right of recovery in case of compensation be awarded. 2. The learned counsel for the appellant very strongly contends before me that as per the policy issued only one non fare paying non employee is covered by the terms of the : 2 : ## M.A.C.A.NOS.1025 & 1028 OF 2008 policy. Here, admittedly there were three persons and therefore whether they are entitled to be indemnified is the question. The Tribunal found that the claimants were the partners of a mango business and they were returning after unloading the mangoes and therefore they were accompanying the goods and therefore by virtue of the statutory provision after the amendment to the Motor Vehicle Act under Act 54 of 94 and as laid down in the dictum in **Asha Rani's case,** the insurance company is bound to pay the amount. 3. In order to resolve this dispute, first one has to arrive at the factual position regarding the status of the persons travelling in the vehicle. It is the case of the claimants and their definite evidence is that they were partners of mango business. They had taken mangoes to Palakkad and after unloading it, they were returning back from Palakkad. They proceeded to Palakkad in a lorry with the goods as the owner of the goods and were returning back after doing their job of unloading the mangoes. Under the amended provisions of the Motor Vehicle Act, the owner : 3 : ## M.A.C.A.NOS.1025 & 1028 OF 2008 of the goods or the representative of the owner of goods is statutorily covered and one need not pay any separate premium for the coverage of those persons. Therefore, if it is found that they were the owners of the goods, then the inusrance company is bound to indemnify. This fact has been considered by the learned Tribunal in Para 10 of the award. It is stated therein that the consistent case of the petitioners is that they were returning in the goods carriage after unloading mangoes to a whole sale dealer. Further PW1 deposed before the court that himself and his elder brother and the petitioner in OP.No.257/2002 were partners in the business of selling mango. Therefore, the Tribunal arrived at the decision that the petitioners were travelling in the goods carriage along with goods loaded therein and after unloading the same, they were returning and it was at that point of time the accident took place. So, this factual position cannot be interfered with in the absence of cogent materials. 4. Then the next question will be at the time of the accident as there were no goods whether one can state : 4 : M.A.C.A.NOS.1025 & 1028 OF 2008 they were persons accompanying the goods. This position had been considered by a Division Bench of this Court in **United India Insurance Company Ltd. v. Suresh** (2006 (4) KLT 333). It was held in that decision that the claim of a passenger in goods carriage will be sustainable even if the carriage is not having goods at the time of accident. The facts of that case would reveal that the person was returning after unloading the luggage. This matter was taken before the Apex Court in **United India Insurance Co. Ltd. V. Suresh** [2008 (4) KLT 552 (SC)]. The decision of this Court on the point of liability of the insurance company was reversed. But it was on the ground that an auto driver is not expected to carry passengers in the driving seat which is statutorily prohibited and therefore one cannot travel in the cabin of an auto rickshaw and therefore, reversed the decision. There is an observation in that judgment regarding this point which is disputed here as follows: “In para 10, the Apex Court held that the High Court, therefore, may be correct that the owner or the goods would be covered in terms of the said : 5 : ## M.A.C.A.NOS.1025 & 1028 OF 2008 provision”. 5. As far as this case is concerned, it is now established that the persons were travelling as the owners of the goods and were returning back. Then the learned counsel would contend by reading the provision under Section 147 of the Motor Vehicle Act. The word used is “include the owner of the goods or his authorised representative carried in the vehicle”. When a partnership is run and three persons are the joint owners of the partnership concerned, necessarily the legislative intention is only to cover the owner and if these persons are owners, then they will be also covered by the statutory mandate. The word authorised representative need not detain for the reason that the facts of the case does not show that they were travelling as authorised representatives. Therefore, though the policy covers only a non employee non fare paying person and as Section 147(1)(b)(ii) covers the owner of the goods, then necessarily it has to be held that the persons travelling as the owner of the goods accompanying the goods is covered : 6 : M.A.C.A.NOS.1025 & 1028 OF 2008 by the statutory word shown therein. 6. Therefore, I cannot accept the argument of the learned counsel for the insurance company and exhonerate the insurance compnay from the liability on that ground. Now the learned counsel would contend that there was no valid driving licence for the driver and therefore, the insurance company at least must be entitled to have the right of recovery. The learned counsel would contend that applications were filed for calling upon the owner and driver to produce the permit as well as the driving licence. It is seen that those petitions were dismissed for non-prosecution. Notices addressed to the respondents returned but thereafter no further steps were taken. When the insurance company claims exoneration of the liability, the duty is on them to prove it. But it has to be equally understood that there is some responsibility on the owner also in the case and he should also co-operate with to decide the matter in accordance with law. Instances are not rare where owners deliberately avoid their presence before the court. : 7 : ## M.A.C.A.NOS.1025 & 1028 OF 2008 7. Therefore, I am inclined to grant an opportunity to the insurance company to establish the fact that there was no valid driving licence at the time of accident. They can again take out summons or if it is not possible to reach the owner, get the particulars from the Regional Transport Authority and produce before the Tribunal so as to make the Tribunal to satisfy regarding the existence or nonexistence of the badge or licence as the case may be. If there is no licence, let the question of liability be decided in accordance with law as is stated in so many decisions of this Court and the Apex Court. 8. In the result, these appeals are disposed of as follows: 1. The finding that the policy covers the risk of the claimants is upheld. 2. The insurance company is given an opportunity to prove that there was no valid permit for the vehicle and no driving licence for the driver at the time of the accident and for that purpose, be permitted to produce or adduce evidence and let the matter be decided in accordance with : 8 : M.A.C.A.NOS.1025 & 1028 OF 2008 law. 3. Since it directly involves liability on the owner, before proceeding further, the insurance company is also directed to take out summons to the owner, so that the matter can be heard and disposed of in his presence. The parties are directed to appear before the Tribunal on 13.11.2009. ## **M.N.KRISHNAN, JUDGE** **cl**