IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1895 of 2005()
1. BABU CHERIAN, AGED 46 YEARS,
... Petitioner
Vs
1. K.P.VARGHESE, S/O.PATHROSE,
... Respondent
2. GRACY BABU, W/O.BABU CHERIAN,
3. THE NATIONAL INSURANCE COMPANY LTD.,
For Petitioner :SRI.ANIL S.RAJ
For Respondent :SRI.P.JAYASANKAR
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :06/10/2008
O R D E R
C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ.
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M.A.C.A No.1895 of 2005
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Dated this the 6th day of October , 2008
JUDGMENT
Ramachandran Nair .J,
This appeal is filed against the award passed by the Motor Accidents
Claims Tribunal, Muvattupuzha, dismissing the appellant’s claim petition
for damages to the vehicle and injuries sustained to him in a Motor
accident. The Maruthi car belonged to a third party being driven by the
appellant’s wife in the middle of the night with appellant as the other
passenger went out of the road and hit against a concrete wall leading to
damages to the car and injury to the appellant. The claim petition was
preferred before the M.A.C.T, contending that the accident was caused
on account of the rash and negligent driving by the appellant’s wife and
consequently the owner and insurer are liable to pay compensation.
However the M.A.C.T. noticed that the accident happened not on account
of any negligence of the driver but it happened while swerving the
vehicle to save a dog which standing in the road . We have heard
counsel for the appellant and standing counsel appearing for the
Insurance Company.
We find some force in the contentions of the appellant’s counsel that
the accident was caused on account of the negligence of the driver
though the driver was none other than the wife of the appellant. Admittedly,
the vehicle was went out of the road and hit fiercely on the road side
wall causing injury to the vehicle and to the passengers inside. Even
-2-
though the car was swerved to save a animal which is a spontaneous
and reflex action it will lead to ouster from the road and hit a roadside
wall at high speed unless the driver could not control the vehicle. Going
by the damages caused to the vehicle as recorded in the report of the
A.M.I, it is obvious that the vehicle at the time of the accident was driven
at a high speed and hence he could not control the vehicle or otherwise
the vehicle would not go out of the road. In any case the impact of the
accident itself proves high speed while driving in the middle of the night
and therefore there is intrinsic negligence of the driver is self-evident,
even though we are inclined to interfere with the finding of the M.A.C.T
holding that the driver was not negligent . The counsel for the Insurance
Company cited a decision of the Supreme Court in United India
Insurance Co.Ltd Vs. Tilak Singh 2006 (2) K.L.T. 884 wherein the
Supreme Court held that a passenger in a private vehicle is not covered by
an ‘act only policy’ which covers only third parties since the policy issued
by the insurer herein is only ‘Act Only policy’. The appellant being the
passenger of the vehicle is not entitled to compensation under the
Policy. In the above circumstances the award of the M.A.C.T. is confirmed
and consequently this appeal is dismissed.
(C.N.RAMACHANDRAN NAIR,JUDGE)
(HARUN-UL-RASHID, JUDGE)
es.
C.N.RAMACHANDRAN NAIR
&
HARUN-UL-RASHID, JJ.
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M.A.C.A. No. 1895 of 2005
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JUDGMENT
6th October , 2008