National Insurance Company … vs Aniamma on 25 November, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1227 of 2005()


1. NATIONAL INSURANCE COMPANY LIMITED,
                      ...  Petitioner

                        Vs



1. ANIAMMA, W/O. LATE JOSE JOSEPH,
                       ...       Respondent

2. ALPHONSA (MINOR), D/O.LATE JOSE JOSEPH,

3. SONIA (MINOR), D/O. LATE JOSE JOSEPH,

4. K.J. JOSEPH, S/O. OUSEPH,

5. BENNY JAMES, S/O. JAMES,

                For Petitioner  :SRI.MATHEWS JACOB (SR.)

                For Respondent  :SRI.MATHEW JOHN (K)

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :25/11/2008

 O R D E R
                  C .N. RAMACHANDRAN NAIR &
                       HARUN-UL-RASHID, JJ.
                  --------------------------------------------
                    M.A.C.A. Nos. 1227,1230,1233
                             & 1192 OF 2005
                  --------------------------------------------
               Dated this the 25th day of November, 2008

                                JUDGMENT

Ramachandran Nair,J.

Appeals are filed by the insurance company challenging the

compensation awarded by the MACT to various claimants in the same

accident. A truck carrying four persons, besides the driver with load of

rubble, capsized leading to death of three persons and injury to other

person. Even though claimants filed claim petitions stating that the

deceased persons and injured were passengers along with goods in the

truck, at the evidence stage the registered owner adduced evidence with

the help of claimants to prove that victims were walking on the road

after finishing their work. Based on this evidence, MACT awarded

compensation against the insurer treating the claim as that of third

parties. It is mainly against this finding of the MACT that the

insurance company has filed appeals. We have heard senior counsel

appearing for the insurance company, counsel appearing for the

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registered owner and counsel appearing for the beneficiaries.

2. We are unable to uphold the finding of the MACT that victims

were padestrians knocked by the truck involved. In fact the case of the

claimants themselves is that victims were travelling along with goods

in the truck. The contrary evidence adduced is only at the instance of

registered owner specifically to cover the victims under the Act policy.

We are of the view that evidence which is contrary to the averments in

the claim petitions is manipulated and unbelievable. On the other hand,

the case of the claimants, as stated in the claim petitions, that the

victims being loading and unloading workers, were travelling along

with goods at the time of accident, is quite realistic, natural and

genuine. Therefore the case of the insurance company that all the

claimants are not entitled to compensation under the Act policy is only

to be upheld and we do so by reversing the order of the MACT to that

extent.

3. We had occasion to go through the Act policy covering third

party claim and damage to property. However, it is seen that additional

premium is collected by the insurer for two employees and one non-

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fare paying passenger. Obviously one employee is the driver who has

no claim. So far as others are concerned, there is no evidence adduced

by anybody. It is not known whether the registered owner, namely,

insured, himself was engaged in the business, and if so, all are his

employees. Since there is no contrary evidence, we feel on equitable

consideration we should take that the truck was engaged by it’s owner

for transport of goods and so much so two of the victims are covered

by the policy. Going by the ratio adopted by the Supreme Court in the

decision in NATIONAL INSURANCE CO. LTD. V. ANJANA

SHYAM, (2007) 3 K.L.T. 993 (SC), we modify the award as follows.

The insurance company will deposit two of the six compensation

amounts awarded, which together constitute Rs. 6.37 lakhs with the

same rate of interest awarded by MACT from the date of application

till date of payment after adjusting total deposits so far made. From

out of the above, a sum of Rs. 1.75 lakhs with proportionate interest

each should be given to legal representatives of each of the persons

who died and the balance Rs. 1,12 lakhs with proportionate interest

should be paid to injured-claimant. However, this does not bar the

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claimants from claiming balance amount from other respondents.

Appeals stand allowed in part as above.

(C.N.RAMACHANDRAN NAIR)
Judge.

(HARUN-UL-RASHID)
Judge.

kk

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