United India Insurance Co. Ltd. v. Thankappan and Others (MACA No. 1114 of 2015)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA, 1945 MACA NO. 1114 OF 2015`** ## **`AGAINST THE AWARD DATED 26.11.2014 IN OP(MV) 761/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR`** ## **`APPELLANT/3RD RESPONDENT:`** ``` UNITED INDIA INSURANCE CO. LTD COCHIN BRANCH, COCHIN. ``` ``` BY ADV PREETHY R. NAIR ``` ## **`RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2:`** ``` 1THANKAPPAN AGED 61 YEARS S/O. KURUMBAN, PALAYIL HOUSE, NADUVATTAM KARA-683574, KALADY VILLAGE, ERNAKULAM DISTRICT. 2JOSEPH AGED 59 YEARS S/O. PAILY, PERUMAYAN HOUSE, SEBIYOOR KARA, MALAYATTOOR VILLAGE-683587, ERNAKULAM DISTRICT. 3PRADEEP S/O. JOSEPH, PERUMAYAN HOUSE, SEBIYOOR KARA, MALAYATTOOR VILLAGE-683587, ERNAKULAM DISTRICT. ``` ``` BY ADV ADV.BASIL CHANDY VAVACHAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1114 OF 2015 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the 3[rd] respondent in O.P.(M.V.) No.761/2009 on the files of the Motor Accident Claims Tribunal, Perumbavoor. The said claim petition was submitted by the 1[st] respondent herein seeking compensation for the injuries sustained to him in a motor accident that occurred on 02.03.2008. According to the claimant, the accident occurred when he was travelling in a goods autorickshaw bearing Registration No.KL 41 A 2252, driven by the 2[nd] respondent herein, along the Kallekkadu-Malayattoor Road, it overturned due to the rash and negligent driving of the 2[nd] respondent. Consequently, the 1[st] respondent sustained injuries. The 3[rd] respondent was the owner of the said vehicle, and it was insured with the appellant herein. Seeking compensation, the claim petition was filed for an amount of Rs.2,50,000/-. 2. The appellant/3rd respondent Insurance Company alone contested the matter by filing a written statement. In the said written statement, even though they admitted the existence of a valid policy for the autorickshaw, it was contended that the claimant was a ``` MACA NO. 1114 OF 2015 ``` ``` 3 ``` gratuitous passenger in the goods autorickshaw and the 1[st] respondent therein/2nd respondent herein did not have a valid driving license while driving the vehicle at the relevant time. 3. The evidence in this case consists of Exts.A1 to A12 series from the side of the 1[st] respondent and from the side of the appellant, Exts.B1 and B2 were marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1[st] respondent therein/2nd respondent herein. However, the Tribunal found violation of policy conditions on the part of the owner of the autorickshaw, as the 2nd respondent herein was found to be driving the vehicle without any valid driving license. Therefore, although the Insurance Company was held liable to pay the compensation at the first instance, they were permitted to recover the said compensation from respondents 2 and 3, herein, after satisfying the award. 4. The contention raised by the appellant seeking their exoneration from liability due to the lack of coverage for gratuitous passengers was not considered by the Tribunal. The quantum of ``` MACA NO. 1114 OF 2015 ``` ``` 4 ``` compensation was fixed as Rs.1,40,878/- and the said amount was directed to be deposited along with interest @ 8% per annum from the date of petition till realisation. This appeal is submitted in such circumstances challenging the award, to the extent it directed the appellant to deposit the award amount at the first instance with the right to recover compensation from respondents 1 and 2. 5. Heard Smt.Preethy R. Nair, learned counsel appearing for the appellant and Sri.Basil Chandy Vavachan, learned counsel appearing for the 1[st] respondent. 6. The learned counsel for the appellant specifically contends that the claimant was a gratuitous passenger in the vehicle for which the coverage of policy was not available. Even though a specific contention in this regard was raised in the written statement, the Tribunal did not consider it. It was also contended that the vehicle involved was a goods autorickshaw with no provision for carrying an additional passenger. Therefore, under no circumstances the coverage of the policy can be extended to cover the risk of an additional passenger. Thus, the learned counsel seeks for ``` MACA NO. 1114 OF 2015 ``` ``` 5 ``` interference. 7. The learned counsel appearing for the 1[st] respondent/claimant stoutly opposes the said contentions. It was pointed out that the policy issued in this case was comprehensive; therefore, the same would take in the coverage for passengers carried in the goods autorickshaw. It was also contended that, even if he was not covered, the proper course to be adopted is to direct the insurance company to pay the amount first and then recover the same from the owner of the said vehicle, as ordered in the award. He also relies on the decisions rendered by the honourable Supreme Court in **Manuara Khatun & Ors. v. Rajesh Kr.Singh & Ors.** [SLP(C) No.5805/2013] and **Balu Krishna Chavan v. The Reliance General Insurance Company Ltd. & Ors.** [SLP(C) No.33638/2017]. It was pointed out that in all these cases, even though it was found that the coverage was not extended to gratuitous passengers, the Honourable Supreme Court directed the Insurance Company to pay the amount at the first instance and thereafter to get it recovered from the registered owner and driver. ``` MACA NO. 1114 OF 2015 ``` ``` 6 ``` 8. Of course, it is true that in the decisions referred to above by the learned counsel for the 1[st] respondent, the Honourable Supreme Court directed the Insurance Company to pay the compensation at the first instance with the right to recover the said compensation from the registered owner. However, the applicability of the said decisions was specifically considered by this Court in **New India Assurance Co. Ltd. v. Daisy Paul and Another** [2021 (2) KHC 449], wherein after elaborate discussion of the decisions referred to above and other similar decisions, it was held that, the directions issued by the Honourable Supreme Court in the said cases were under Article 142 of the Constitution of India and the said power cannot be exercised by this Court. Therefore, in the light of the decision rendered by this Court in **Daisy Paul’s** case (cited supra), the contention put forward by the learned counsel for the 1[st] respondent cannot be accepted. 9. The learned counsel reiterates that, as the policy issued in this case was comprehensive, it would take in the coverage of passengers. It was further contended that even though the vehicle ``` MACA NO. 1114 OF 2015 ``` ``` 7 ``` did not contain any facility to carry any additional passenger, even if an additional passenger was carried, that can only be treated as a case of violation of policy conditions, and the same cannot be treated as a case where no coverage at all. He also relies on the decision rendered by the Andhra Pradesh High Court in M.A.C.M.A. 674/2023. However, the decision rendered by the Andhra Pradesh High Court was in relation to a lorry where seating capacity was available for accommodating an additional passenger. In this case, there is no dispute that there was no facility to carry an extra passenger in the said vehicle. When the vehicle did not have the facility to carry a passenger, even if the policy issued was a comprehensive policy, that cannot by itself be assumed to be a policy which would take in the coverage of the risk of a passenger. The policy is produced as Ext.B1. From the perusal of the terms and conditions of the policy also, it can be seen that no coverage of any passengers was provided therein, and the additional coverage provided was for personal accident coverage for the owner, driver and the coverage for workmen’s compensation to one of the ``` MACA NO. 1114 OF 2015 ``` ``` 8 ``` employees. In this case, the 1[st] respondent does not have a case that he was carried in the vehicle as a workman. 10. Therefore, under no circumstances the coverage of the policy can be extended to him. In the light of the observations made above, the only conclusion possible is that, Ext.B1 policy did not extend to cover the risk of the passenger carried in the goods autorickshaw, particularly because the said vehicle did not have the facility to carry an additional passenger. In such circumstances, I am of the view that the finding of the Tribunal, holding the appellant responsible for paying the compensation at the first instance, is liable to be interfered with. Accordingly, the award dated 26.11.2014 in O.P.(M.V.) No.761/2009 passed by the Motor Accident Claims Tribunal, Perumbavoor, is hereby set aside to the extent it directed the appellant/3rd respondent Insurance Company to deposit the amount of compensation. It is held that the appellant/3rd respondent Insurance Company shall stand exonerated from the liability as the coverage of policy does not extend to the risk of the passenger ``` MACA NO. 1114 OF 2015 ``` ``` 9 ``` carried in the goods autorickshaw. However, the 1[st] respondent shall be entitled to recover the compensation from the respondents 2 and 3 herein. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs