The Oriental Insurance Co. Ltd. vs Kunhikrishnan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA 1938 MACA.No. 49 of 2010 ( ) -----------------------AGAINST THE AWARD IN OPMV 528/2006 of M.A.C.T.,KOZHIKODE DATED 01-08-2009 APPELLANT(S)/2ND RESPONDENT: --------------------------- THE ORIENTAL INSURANCE CO.LTD. KOZHIKODE, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S)/CLAIMANTS: ----------------------- 1. KUNHIKRISHNAN,S/O. GOVINDAN, RESIDING AT CHEROTTU PARAMBU, OLAVANNA POST, KOZHIKODE. 2. CHINNAMMALU, W/O. KUNHIKRISHNAN, RESIDING AT CHEROTTU PARAMBU, OLAVANNA POST, KOZHIKODE. 3. RAJESH, S/O. KUNHIKRISHNAN, RESIDING AT CHEROTTU PARAMBU, OLAVANNA POST, KOZHIKODE. 4. SARITHA, D/O. KUNHIKRISHNAN, - RESIDING AT CHEROTTU PARAMBU, OLAVANNA POST, KOZHIKODE. 5. VIBEESH K., S/O. PUSHPARAJAN, THAROL MEETHAL HOUSE, OLAVANNA POST, KOZHIKODE. R,R5 BY ADV. SRI.JACOB ABRAHAM R,R5 BY ADV. SMT.KOCHUMOL KODUVATH R,R1 BY ADV. SMT.K.V.RESHMI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM & SHIRCY V, JJ. ----------------------------------------------MACA.No. 49 of 2010 ----------------------------------------------Dated this the 18th day of January, 2017 ## JUDGMENT ## Abdul Rehim,J. The above appeal is instituted against the Award in OP (MV).No.528/2006 of the MACT, Kozhikode. The 2[nd] respondent before the Tribunal, who is the insurer of the vehicle involved in the accident, is the appellant herein. The accident occurred on 7.10.2005 at about 6.30 a.m. when a Goods Autorickshaw in which the deceased Premkumar was travelling capsized, causing fatal injuries to him. The 1[st] respondent before the Tribunal is the owner-cum-driver of the vehicle. The Tribunal found that the claimants are entitled to get compensation to the tune of Rs.1,74,500/-. Contention raised by the appellant Insurance Company that the deceased was a gratuitous passenger in the Goods Vehicle and hence the company was not liable to pay the compensation, was negatived by the Tribunal by holding MACA.49/2010 2 that the deceased was travelling in the Goods Autorickshaw as a person accompanying the goods. The appellant is assailing the above finding in this appeal. 2. Contention of the appellant before the Tribunal was that the policy does not cover liability of a passenger in Goods Autorickshaw vehicle and since the deceased was travelling in the vehicle as a gratuitous passenger, they are not liable. Statement in the claim petition was that the deceased sustained fatal injuries while he was travelling in Autorickshaw bearing registration No.KL.11-U 9945. The 1[st] respondent before the Tribunal, who is the owner-cumdriver, filed written statement admitting that the deceased was accompanying the goods namely, wooden materials. Ext.A1 is the copy of the FIR and the FI statement with respect to the police case registered. It would indicate that the deceased was travelling in the Autorickshaw by sitting inside the cabin . The appellant has not adduced any evidence to disprove the version put forth by the ownercum-driver of the vehicle to prove that the deceased was MACA.49/2010 3 not accompanying the goods. But on the other hand, the appellant had only produced a copy of the policy. 3. The Tribunal found that there was nothing to show that the deceased was a gratuitous passenger. In the decision of the hon'ble Supreme Court in **United India Insurance Company vs. Suresh 2008(4) KLT 552 SC)** it is held that the amended provisions of section 147 (b) (ii) makes it explicitly clear that the word 'carried' qualifies the owner of goods or his representative and not the goods carried. It is further held that if goods are found inside the vehicle at the time of the accident, it is a clinching circumstance to establishes that the passenger who claims to be the owner of goods or the owner's representative was travelling in that capacity. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. But it is held therein that if it is proved that the person who was travelling in the vehicle is either the owner of the goods or a representative of the owner of the goods, he will be covered under section 147(b)(i) and MACA.49/2010 4 the insurer be liable. However, the hon'ble Supreme Court held that, in the case of a three wheeler goods carriage, the Driver could not have allowed anybody else to share his seat. No other person , whether as a passenger or an owner of the goods is supposed to share the seat of the Driver. In such case violation of the condition of the contract of insurance is approved. 4. Following the decision in **Suresh's case (supra)** a Division Bench of this court in **United India Insurance Company Ltd. vs. Manoj (2011 (1) KLT 502)** held that, the owner of the goods in a Goods Autorickshaw sharing seat with the Driver would amounts to violation of the policy condition. It was held therein that in such case it will be open to the insurer to recover the amount of compensation ordered to be paid to the claimants, from the insured. 5. Eventhough it is contended that there is no evidence to the effect that the deceased was travelling in the capacity as owner of the goods or in the capacity as a representative of the owner of the goods, we are not MACA.49/2010 5 persuaded to accept the contention, in view of the uncontroverted version put forth by the owner-cum -driver of the vehicle to the effect that the deceased was accompanying the goods, which are wooden materials. The appellant has not taken any steps to prove otherwise. Therefore the findings to the effect that the deceased was accompanying the goods in his capacity as the owner or the owner's representative cannot be reversed by this appellate court. 6. However, the contention that the deceased was permitted to travel by sharing seat of the Driver in a Goods Autorickshaw, and thereby the owner-cum-driver had violated the conditions of the policy, need to be considered. In this regard, the learned counsel for the appellant pointed out that Ext.A1 FIR would indicate that the deceased was travelling within the cabin. But this aspect was not considered by the Tribunal based on any evidence. Nonetheless there is no evidence adduced by either of the parties with respect to the above aspect. Therefore we are MACA.49/2010 6 of the opinion that a remand of the matter for determining the limited question as to whether the deceased was sharing the seat of the Driver and as such whether there was any violation of the conditions of the policy, would suffice to meet the ends of justice. However, in any case, we hold that the appellant insurer is liable to make payment of the amount awarded, to the claimants. The only question which remains to be decided is as to whether they are entitled to recover the compensation from the owner of the vehicle. 7. Under the above mentioned circumstances, the above appeal is hereby disposed of by remanding the case to the Tribunal for fresh adjudication on the limited question as to whether the appellant need to be permitted to recover the compensation from the 1[st] respondent before the Tribunal. 8. It is evident that by virtue of an interim order passed by this court the appellant was directed to make payment to the claimants the amount due under section 140 MACA.49/2010 7 of the Motor Vehicles Act. The appellant/insurer is directed to make payment of the amount of compensation awarded, less the amount if any paid, before the Tribunal within a period of two months from today. If the Tribunal is satisfied that the insurer had remitted the award amount, it shall consider the question for which remand is ordered as above and shall pass appropriate orders, if necessary after affording opportunity to the appellant herein and respondents 1 and 2 before the Tribunal to adduce further evidence. A decision on the question on which remand is ordered shall be taken at the earliest possible, at any rate within a period of 4 months from the date of receipt of a copy of this judgment. The parties shall appear before the MACT on 20.2.2017. C.K.ABDUL REHIM, JUDGE SHIRCY V, JUDGE Pmn/ MACA.49/2010 8