IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 872 of 2005()
1. BHUVANACHANDRAN, S/O.SOMAN NAIR,
... Petitioner
Vs
1. THE DIRECTOR GENERAL OF POLICE,
... Respondent
2. ALEX.C.V.,
3. THE UNITED INDIA INSURANCE COMPANY
For Petitioner :SRI.K.R.KURUP
For Respondent :SRI.RAJESH THOMAS
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :31/03/2010
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NO. 872 OF 2005
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Dated this the 31st day of March, 2010.
J U D G M E N T
This appeal is preferred against the award of the Motor
Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)820/01.
A police jeep carrying police officials got involved in an
accident when it gave way to a lorry coming from the
opposite direction resulting in the jeep falling into a lower
terrain resulting in injuries to the occupants of the jeep. The
learned Tribunal found that as per the police report the
accident is ……………….” and as the matter is referred there
is nothing to show that the driver was negligent. Any
accident for that matter is not a premeditated one. Since it
is not a premeditated one it is always called as an accident.
A driver of a vehicle, irrespective of the category of the
vehicle is involved, has to bestow maximum care and
attention to avert accidents. The exceptional cases are by
mechanical failure or act of Got. In this case neither there is
M.A.C.A. 872 OF 2005
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any mechanical defect nor any act of God so as to exonerate
the driver from liability. When a vehicle is coming from the
opposite direction certainly it is visible and if that vehicle is
coming at a high speed the vehicle which is going from the
opposite direction especially the driver is expected to bestow
care and attention not only to avert accident but to avoid any
injury to the occupants of the jeep. When one driver puts
the jeep so close to the road margin knowing fully well that
there is a lower area from the road margin and when the
vehicle capsize it is to be held that he had not taken
adequate care which he was expected to take under the civil
law. One cannot attribute criminal negligence on him. But it
will be a case sufficient to hold that there is negligence. As
stated negligence takes place when one performs duty which
one is not expected to do and restrain from performing a
duty which is expected to do. Here he had not performed a
duty which he should have done carefully and diligently.
Therefore it has to be stated that the finding of the Tribunal
that the driver is not responsible for the accident cannot be
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accepted. Therefore it is a case where things itself speaks
and I hold that the accident had taken place only on account
of the negligence of the driver of the jeep.
2. Now coming to the quantum. Fortunately for the
claimant he had not suffered very serious injuries. He had
two small lacerations of .5 cm long on the right eyebrow but
he had shoulder pain which on radiological examination
revealed that there was anterior dislocation of the shoulder.
Dislocation of shoulder is a painful injury. But he has been
only treated as an outpatient and materials are not available
to show that he had any continuity of treatment. So for that
injury I feel Rs.1,000/- can be given as treatment expenses
and Rs.1,000/- as incidental expenses and a sum of
Rs.5,000/- for pain and sufferings and temporary loss of
amenities, thus making a total compensation of Rs.7,000/-.
3. Now the next question is regarding the liability. It
is submitted that the policy issued is only an Act only policy.
It is true that by virtue of the clarificatory circular issued by
the Insurance Regulatory and Development Authority
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insurance company’s liability in respect of passengers carried
in a private vehicle and persons carried in a two wheeler are
covered under the terms and conditions of Standard Motor
Package Policy. But here the policy is only an Act only policy.
Or in other words, liability only policy. When it is only a
liability only policy the dictum laid down by the Apex Court in
Tilak Singh’s case has to be followed. The status of persons
travelling in such vehicles are that of gratuitous passengers
and the word ‘any person’ does not cover them and they will
be covered only if additional premium is paid. Therefore the
insurance company cannot be saddled with the liability. So I
exonerate the insurance company from the liability. Then it
follows that respondents 1 and 2 are jointly and severally
liable for the liability.
In the result the MACA is allowed and the award under
challenge is set aside and the claimant is awarded a
compensation of Rs.7,000/- with 7.5% interest on the said
sum from the date of petition till realisation and the first
respondent is directed to deposit the same within a period of
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sixty days from the date of receipt of a copy of the
judgment.
Sd/-
M.N. KRISHNAN, JUDGE.
ul/-
[true copy]
P.A. To Judge.