IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 136 of 2004(Y)
1. SATHEESAN @ APPU, S/O. VELAYUDHAN,
... Petitioner
2. AMALKUMAR S/O. SATHEESAN, AGED 4 YEARS,
3. AMMU D/O. SATHEESAN, AGED 1 YEAR (MINOR)
Vs
1. GEORGE JOSEPH S/O. JOSEPH, VAYALIL HOUSE
... Respondent
2. SHIJU V.J., THURUTHIYIL HOUSE, CHURULI,
3. NATIONAL INSURANCE CO. LTD., REPRESENTED
For Petitioner :SRI.JOICE GEORGE
For Respondent :SMT.SARAH SALVY
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :19/07/2010
O R D E R
A.K. BASHEER & P.Q. BARKATH ALI, JJ.
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M.A.C.A. 136/2004, 74/2007 & 164/2007
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Dated: JULY 19, 2010
JUDGMENT
Basheer, J.
These appeals are being disposed of by this common judgment
since they are directed against a common award arising from a batch
of five claim petitions filed under sec.166 of the Motor Vehicles Act.
2. A jeep belonging to the common appellant in MACA 74/2007
& 164/2007 capsized and some of the passengers therein sustained
injuries, and one of them later succumbed to the injuries sustained by
her. The legal heirs of the deceased and the other victims laid five
claim petitions before the Tribunal alleging negligence on the part of
the driver of the jeep for the accident.
3. The Insurance Company with which the vehicle was
admittedly insured contended that the policy issued by it was only an
‘Act only’ policy and therefore the victims who were travelling in the
jeep as “paid passengers” were not liable to get any compensation
from the Company. In other words, the contention was that the
owner of the jeep was not liable to be indemnified by the Insurance
Company since he had been using the vehicle as a taxi jeep in
violation of the policy conditions.
M.A.C.A. 136/2004, 74/2007 & 164/2007
2
4. The above contention was accepted by the Tribunal though
compensation was awarded in all the claim petitions depending on
the nature of injuries. However, the Insurance Company was directed
to pay the compensation to the claimants and recover it from the
owner of the vehicle.
5. The appellants in MACA 164/2007 are the legal heirs of the
deceased passenger. The grievance of the appellants is that the
compensation awarded by the Tribunal is too inadequate and low.
6. Sri George Mathew, learned counsel for the common
appellant in MACA 74/2007 & 164/2007 submits that there was
absolutely no evidence to show that he had been using the vehicle as a
taxi jeep. He further contends that even assuming he had violated
the policy conditions and carried some passengers in excess of the
seating capacity, it could not have been held that the said violation
would have caused the accident. He placed reliance on a decision of
their Lordships of the Supreme Court in National Insurance Co. Ltd. v.
Swaran Singh {2004 (3) SCC 297} in this context. The learned
counsel placed heavy emphasis on certain observations made by their
Lordships on the beneficial aspect of the legislation. He contends
that in the absence of any evidence to show that the jeep capsized
only because some passengers were carried in it, be it either
M.A.C.A. 136/2004, 74/2007 & 164/2007
3
gratuitously or on payment of some fare, the Tribunal ought not to
have allowed the insurer to recover the compensation from the
appellant/owner after paying the same to the claimants.
7. We are afraid the above decision will not come to the aid or
rescue of the appellant in any manner. The decision in the above case
revolved around the question whether absence of driving licence of
the driver of the offending vehicle would exonerate the Insurance
Company from the liability to pay compensation to the third parties.
The Apex Court answered the above question in the negative and held
that going by the scheme of the Act, particularly keeping in view the
beneficial aspect of the legislation, the Insurance Company will be
liable to indemnify the third party, though, of course, it would be
entitled to recover the same from the owner of the vehicle who had
committed breach of the policy conditions.
8. In the case on hand, the appellant does not have a case that
the policy obtained by him was not an ‘Act only’ policy, But, according
to the appellant, in an interior village there may be many
acquaintances, friends and relatives who may ask for a free lift in the
vehicle. There may also be occasions when the family members may
have to travel in the jeep. The only sin committed by the appellant
was that he had failed to pay additional premium at the time when the
M.A.C.A. 136/2004, 74/2007 & 164/2007
4
policy was taken. But, according to the learned counsel, the
appellant had not committed any willful breach of the policy
conditions. Therefore there was no justification in mulcting the
appellant with the liability to pay the compensation.
9. It has to be remembered that issuance of a policy is a
contractual arrangement. The appellant had taken the policy knowing
the implications thereof. An “Act only” policy covers the risk as
against the third parties only, as provided under sec.147 of the Motor
Vehicles Act. Therefore the Insurance Company will be well within its
rights to contend that only third parties will be liable to be covered
going by the terms of the policy. Having perused the entire materials
available on record, particularly in the absence of any specific pleading
or proof, it cannot be said that the Tribunal had committed any error in
holing that the Insurance Company will be entitled to recover the
amount from the appellant. Therefore M.A.C.A. 74/2007 & 164/2007
are liable to be dismissed. We do so.
10. In this context it must be remembered that the appellant
and his driver did not choose to contest the claim petitions before the
Tribunal. Though learned counsel made a persuasive plea to afford a
further opportunity to the appellant by remanding the case to the
Tribunal, we are not inclined to accede to the request at this distance
M.A.C.A. 136/2004, 74/2007 & 164/2007
5
of time, more importantly since it is brought to our notice that the
Insurance Company had already deposited the entire compensation
payable to the claimants in all these cases.
11. As far as M.A.C.A. 136/2004 is concerned, the grievance of
the appellants is that the compensation awarded for the death of
Sindhu is too inadequate and low. We have carefully perused the
award. The Tribunal has awarded a sum of Rs.1,74,000/- with 9%
interest thereon. The Tribunal after considering the evidence
adduced by the appellants in this case came to the conclusion that the
monthly income of the deceased could be taken as Rs.1250/-. The
appropriate multiplier as provided under the Schedule was taken as
16. The compensation was calculated on that basis. In the facts
and circumstances of the case, we do not find any reason to interfere
with the award passed by the Tribunal. Therefore M.A.C.A. 136/2004
also fails. It also is dismissed.
A.K. BASHEER, JUDGE
P.Q. BARKATH ALI, JUDGE
mt/-