IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 95 of 2006(Y)
1. P.R. NARAYANAN, S/O. LATE RAGHAVAN,
... Petitioner
Vs
1. ULAHANNAN S.T.,
... Respondent
2. THE ORIENTAL INSURANCE CO. LTD.,
For Petitioner :SRI.T.K.KOSHY
For Respondent :SRI.A.R.GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/09/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A.No.95 of 2006
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Dated, this the 30th day of September, 2008
J U D G M E N T
This appeal is preferred by the claimant, whose claim has
been dismissed on the ground that he has contributed to the
cause of the accident. The learned counsel would contend that
the said finding is wrong. I will consider it differently under two
headings, namely, the liability of the Insurance Company, so also
whether there is a claim that can be entertained against the
owner-cum-driver of the goods autorickshaw. So far as the
Insurance Company is concerned, if a person is traveling in a
goods autorickshaw, which is not designed to carry passengers, it
will become a case of gratuitous passenger traveling in a vehicle.
Admittedly, it is a goods autorickshaw and there is only one seat
for the driver. The driver is not expected to carry anybody inside
the said seat. This position is well settled by the decision of the
Apex Court in United India Insurance Company Limited Vs.
Suresh K.K. & Another , reported in 2008 AIR SCW 4739. In
paragraph 13 of the said decision, the Apex Court held that :-
“If the claimant had not been traveling in the vehicle as owner of
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the goods, he shall not be covered by the policy of the insurance.
In any view of the matter in 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 as a owner of the vehicle
is supposed to share the seat of the driver. Violation of the
condition of the contract of insurance, therefore, is approved.”
In this case, the claimant was traveling in the platform of the
autorickshaw. He was not expected to travel in the platform of
the autorickshaw and therefore, that also militate against his
claim from the Insurance Company. So, from these facts, I hold
the Insurance Company cannot be liable.
2. Now, the next question is regarding the liability of the
owner-cum-driver of the autorickshaw. An owner of a goods
autorickshaw is not expected to carry a person on the platform of
the vehicle or on the seat, which can only accommodate one. In
such cases, when a person is permitted to travel, there is primary
negligence on the part of owner-cum-driver. At the most, the
conduct of the claimant would attract contributory negligence and
not total negligence. So, it is a matter that requires
consideration and the finding of the Tribunal that the claimant is
totally contributed to the accident and is improper is liable to be
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set aside. Therefore, the award under challenge is set aside and
the matter is remitted back to the Tribunal.
(1) It is found that the Insurance Company cannot be mulcted
with the liability.
(2) The Tribunal shall permit the claimant to adduce evidence in
support of his contention regarding the negligence of the owner-
cum-driver.
(3) Since the owner-cum-driver has not appeared before the
Tribunal or before this Court, the claimant is directed to take
notice to him and the Tribunal, after permitting him to file a
written statement, shall dispose of the matter in accordance with
law.
(4) The claimant is directed to appear before the Tribunal on
18/11/2008.
(M.N.KRISHNAN, JUDGE)
jg