IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 538 of 2003(C)
1. NEW INDIA ASSURANCE CO. LTD.,
... Petitioner
Vs
1. PRASANNAKUMAR P.R., KUNEL PUTHUPARAMBU
... Respondent
2. RADHA.G. W/O. PRASANNAKUMAR, KUNNEL
3. PRANAVE (MINOR) S/O. PRASANNAKUMAR,
4. RAGHAVAN K.K., KUNNEL PUTHUPARAMBU,
5. AMMINI RAGHAVAN, KUNNEL PUTHUPARAMBU,
6. ANTONY JOSEPH, PALAKUNEL, MAMMOOD P.O.,
7. PRABHAKARAN.G., MUKKADAPARAMBIL, KANOTTU
For Petitioner :SRI.THOMAS MATHEW NELLIMOOTTIL
For Respondent :SRI.M.N.MATHEW
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :02/12/2009
O R D E R
P.R. RAMAN &
P.R. RAMACHANDRA MENON, JJ.
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MACA No. 538 of 2003
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Dated, this the 2nd day of December, 2009
J U D G M E N T
P.R.Ramachandra Menon, J.
Sustainability of the Award passed by the Tribunal, granting
compensation in respect of a person, who sustained injuries while
travelling in a goods carriage and mulcting the liability on the shoulders
of the insurer, is the issue involved in this appeal preferred by the
Insurance Company.
2. The injured was travelling in a mini lorry bearing No. KLB-
9250 owned by the first respondent, driven by the 2nd respondent and
insured by the 3rd respondent, on 08.08.1994 at about 6.45 p.m. While
so, allegedly due to the rash and negligent driving on the part of the
driver of the mini lorry, it hit against some pedestrian and an electric
post and thereafter overturned, causing injuries to the claimant; which
led to the claim.
3. The owner and driver of the vehicle did not choose to
contest the matter and were set exparte. The Insurer filed detailed
written statement, specifically contending that the Policy issued in
respect of the vehicle was an ‘Act only Policy’; that the injured was only
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a gratuitous passenger for whom there was no coverage under the Policy
and hence that there was no liability for the insurer to indemnify the
insured.
4. The claimant was examined before the Tribunal as PW1 who
produced and marked Exts.A1 to A13; while Exts.B1 and B2 (policy
certificate and commercial vehicle tariff) were produced and marked from
the part of the insurer. After analyzing and appreciating the facts and
circumstances, on the basis of the relative pleading and evidence on
record, the Tribunal held that the accident was only because of the rash
and negligent driving by the 2nd respondent. Taking note of the injuries
sustained, the nature of engagement of the injured, his income, age,
percentage of disability and other relevant facts and circumstances, the
Tribunal awarded a total sum of Rs.1,51,000/- as the compensation,
which was held as payable jointly and severally by the 3rd respondent, with
interest at the rate of 9% per annum from the date of the petition till the
date of deposit.
5. With regard to the specific contention raised from the part of
the appellant/insurer as to the absence of coverage, the Policy being an
‘Act only’ Policy, it was observed by the Tribunal in paragraph 6 that the
law was well settled in view of the decision of Apex Court in New India
Assurance Company Vs. Sat Pal Sing [2000 (1) KLT 95], where it was
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3
held that any person travelling in a goods carriage was entitled to be
compensated, irrespective of the nature or class of the vehicle. It was
accordingly that the liability was shifted to the shareholders of the
appellant/insurer, holding that the liability is very much covered even
under the ‘Act only’ policy.
6. We have heard both the learned counsel appearing on either
side. The decision rendered by the Apex Court in Satpal Singh’s case
relied on by the Tribunal was subsequently over ruled by the Larger
Bench of the Supreme Court in New India Assurance Company Vs.
Asha rani [2003 (1) KLT 165] referring to the relevant provisions of law
including the definition of the term ‘goods carriage’ and also the changes
brought into effect by virtue of the new Act. It was specifically held that a
person travelling in a goods carriage will not come within the purview of
“3rd party” so as to be compensated under the statute, under Section 147.
This being the position, the finding and reasoning given by the Tribunal
are no more liable to be sustained.
7. However, the learned counsel for the first respondent/
claimant submitted that the claimant was travelling in the goods carriage,
not in the capacity as gratuity passenger, but was actually accompanying
the goods carried in the vehicle. Learned counsel also submits that the
owner or his representative accompanying the goods in the vehicle will
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definitely come within the purview of ‘Act only’ policy itself and hence that
the Award already passed by the Tribunal is liable to be sustained.
8. However, it is very much relevant to note that the status of a
person who is travelling in a goods carriage was considered by the Apex
Court and the law was declared as per the decision rendered in
Mallawwa (SMT) & others Vs. Oriental Insurance Company and
others [1999(1) SCC 403] holding that no such person is entitled to be
compensated by the insurer under such circumstance. However the said
decision was rendered with specific reference to the Old Act (MV Act,
1939). Later, doubting the decision rendered by the Apex Court in Satpal
Singh’s case, the matter was referred to larger bench; which led to the
decision rendered in Asha rani’s cited supra.
9. It is also worthwhile to note that the legal position as noted
and analysed by the Apex Court while rendering the decision in Asha
rani’s case was also with specific reference to the changed circumstance
after the amendment which take place and brought into effect from
14.11.1994 as well. As made clear by the Apex Court, the owner or his
representative travelling in a goods carriage was brought within the
statutory coverage under ‘Act only’ policy only by virtue of the said
amendment, (i.e., by Act 54 of 1994), which was brought into effect from
14.11.1994. But in the instance case, the accident admittedly occurred on
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08.08.1994, i.e., prior to the said amendment. This being the position,
even if the contention of the 1st respondent that he was travelling in the
goods carriage accompanying the goods carried in the vehicle is
accepted, it cannot tilt the balance in any manner, in so far as the
accident was much prior to the said amendment.
10. In the above facts and circumstances, we find that the Award
passed by the Tribunal fixing the liability upon the appellant/insurer is not
correct or sustainable. As such, we set aside the Award and absolve the
appellant/insurer, however making clear that the additional claimants, who
are the legal heirs of the original first respondent (who subsequently
passed away) can proceed against the owner and driver of the vehicle; for
realisation of the due amount awarded by the Tribunal.
The appeal is allowed as above. No cost.
P.R. RAMAN, JUDGE
P. R. RAMACHANDRA MENON, JUDGE
dnc