IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 228 of 2006()
1. RAJAN.P., S/O.PULLAN,CHIRAYIL
... Petitioner
Vs
1. K.J.JOHN, S/O.IDICHERIYAN,
... Respondent
2. UDAYAN.K., S/O.KUNJAN PILLAI,
3. NATIONAL INSURANCE CO. LTD.,
For Petitioner :SRI.VIJU THOMAS
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :19/11/2008
O R D E R
C.R.
C.N.RAMACHANDRAN NAIR &
HARUN-UL-RASHID, JJ.
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M.A.C.A. No.228 of 2006
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Dated this the 19th day of November, 2008.
JUDGMENT
Ramachandran Nair, J.
The appeal is filed against the order of the MACT dismissing a
claim petition filed by the appellant for compensation for injury
sustained by him in an accident claimed by him to be road accident.
We have heard counsel appearing for the appellant, Senior counsel
appearing for the Insurance Company and counsel appearing for the
registered owner of the vehicle involved in the accident.
2. The facts leading to the case are the following. On 4.3.1998 at
around 7.30 p.m. a load of marble was being unloaded in the house
premises of a person who purchased and transported marble to his
house in the same truck. The appellant’s case is that while unloading
the marble, driver of the vehicle took it in the reverse gear which led to
a marble piece falling on his left leg causing serious injury. Before the
MACT, Insurance Company pleaded that accident occurred in a private
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premises i.e. in the compound of a house and that accident is not on
account of any rash and negligent driving of the vehicle and it is an
accident that took place while unloading the goods from a stationary
truck. The MACT accepted the plea of the Insurance Company and
held that there is no policy coverage because accident did not take
place in a public place which is a requirement for liability for the
Insurance Company under Section 147 of the Motor Vehicles Act.
Counsel for the appellant submitted that accident occurred while the
vehicle was taken in the reverse direction by the driver when marble
was being unloaded. However, Senior counsel for the Insurance
Company brought to our notice the Police record which shows that for
the accident occurred on 4.3.1998, a private complaint was filed on
23.7.1998 and pursuant to court orders, the Investigation Officer found
that the accident happened when marble was unloaded from the
stationary truck and based on this he contended that the case of the
appellant that accident took place when the driver took the vehicle in
the reverse is a bogus one. The belated complaint filed and the case
put forward by the appellant that the accident took place when the
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vehicle was moved in the reverse direction by the driver is an absolute
bogus case and is created only to ensure recovery of compensation
from the Insurance Company. Needless to mention that all involved
including the driver of the vehicle helped in the venture. However, we
believe the findings in the final report submitted by the Police which is
strengthened by the delay in filing of complaint itself and we, therefore,
hold that the accident occurred while marble was unloaded from the
stationary lorry.
3. Even though we have found part of the case put forward by the
appellant against him, we still feel the ground on which MACT
declined compensation is not tenable because MACT decided the case
against the appellant only because the accident took place in a private
premises i.e. in the house compound. Counsel for the appellant relied
on decisions of this court in NAZEEMA V. SEBASTIAN (1987(1)
KLT 370), UNITED INDIA INSURANCE COMPANY V. PIERCE
LESLIE INDIA LTD. (2000(1) KLJ 460) and ALIAS V. PAUL (2003
(2) KLT 992). In one case this court held that when entry of transport
vehicle is permitted in a factory premises, such premises constitute a
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“public place” for the purpose of liability for compensation payable by
the Insurance Company under Section 147 of the Motor Vehicles Act.
Similarly in the other two cases this court held that road leading to a
stone quarry and workshop premises can be treated as public place for
the purpose of Section 2(34) of the Motor Vehicles Act. Section 2
(34) of the Motor Vehicles Act defines public place as follows:
“Public place” means a road street way, or other
place, whether a thoroughfare or not, to which the public
have a right of access and includes any place or stand at
which passengers are picked up or set down by a stage
carriage.
From the above we are of the view that public place does not have a
restricted meaning in as much as it is not to be taken as a place where
public have uncontrolled access at all times. “Public place” for the
purpose of the Act has to be understood with reference to the places to
which a vehicle has access. It is specifically mentioned in the
definition that any place of stand at which passengers are picked up or
set down by a stage carriage is a public place. While this applies to
vehicles carrying passengers, the definition does not deal with places
of access to goods vehicles. We are of the view that wherever goods
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vehicles are allowed entry, the workers engaged in loading, unloading
and the crew also have access. In this case the person involved is a
headload worker and obviously he has a right of access to the place for
his work, though he is not a crew member or a regular employee of the
vehicle. While this is a case of truck allowed inside the house
compound where construction was carrying on, for the purpose of
unloading of goods, several godowns provide access to goods vehicles
and headload workers so that loading and unloading from vehicles are
done in the godowns. Obviously construction sites, godowns etc. are
not places where public have uncontrolled right of access. However,
access is provided to employees, crew members of goods vehicles,
loading-unloading workers etc. for the purpose of carrying out their
work involving use of the vehicle. Unless places like this where
restricted entry is permitted to specified class of people for the purpose
of handling goods in the form of loading and unloading of goods are
treated as public places, the very purpose of insurance coverage under
Section 147 of the Act will be defeated. It is clear from Section 147
that liability under the policy is not restricted for accident taking place
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on public roads. On the other hand, instead of using public road, the
coverage under the policy is for accidents taking place in public place
which in our view, has a wide meaning covering private places of the
kind referred above where restricted access is provided to limited class
of public which can be even for specific purposes. We, therefore, hold
that the private premises of a house where goods vehicle is allowed
entry, is a public place for the purpose of Section 2(34) of the Motor
Vehicles Act which leads to liability for the Insurance Company
subject to satisfying other conditions of the policy.
4. The next question to be considered is whether the appellant is
entitled to compensation for the injury sustained while unloading
goods from the stationary truck. Counsel has relied on decision of this
court in NEW INDIA ASSURANCE CO. LTD. V. LAKSHMI (2000
(3) KLT 80) whereunder this court has held that injury sustained
during the course of unloading goods is an accident taking place on
account of use of the vehicle. The use of a transport vehicle obviously
involves loading of goods, transporting the same and unloading the
goods. All those engaged in loading and unloading are using the truck
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during such time. Therefore, any accident arising during loading and
unloading will also be an accident arising on account of use of the
vehicle. Therefore, the appellant’s claim for compensation against the
Insurance Company is maintainable because the accident arose on
account of use of the vehicle and as already held by us, the accident
occurred in a public place. However, the MACT has not considered
the question whether the claim is maintainable under Section 166 of
the Motor Vehicles Act because of it’s finding that there is no
coverage under the policy as the accident took place in a private
premises. Since we have found this issue in favour of the appellants,
we have to necessarily remand the matter to the MACT for
reconsideration. However, we make it clear that the MACT should
consider the case of the Insurance Company based on the final report
of the Police Officer who conducted the investigation and found that
accident took place while goods were loaded from stationary truck and
the case put forward by the appellant that the accident took place while
vehicle was reversed by the driver is factually incorrect. The MACT is
directed to examine the claim critically with specific reference to the
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final report of the Police and the belated private complaint filed by the
appellant four months after the date of the accident. The appellant will
produce copy of this judgment before the MACT for issuing notice to
respondents and for adjudicating the matter afresh.
C.N.RAMACHANDRAN NAIR
Judge
HARUN-UL-RASHID
Judge
pms