IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1112 of 2010()
1. PREMALATHA, W/O.REGHU,
... Petitioner
2. REMYA, AGED 22, D/O.REGHU,
3. RENJITHA, AGED 20, D/O.REGHU,
4. RENJU, AGED 17, S/O.REGHU,
5. LEKSHMI, AGED 81, W/O.NARAYANAN,
Vs
1. SHAJI, S/O.JOBOY, MALIAKAL HOUSE,
... Respondent
2. ABDUL SALAM, S/O.SULAIMAN,
3. ABDUL SATHAR, S/O.ABDUL RAHIMAN,
4. THE NATIONAL INSURANCE CO.LTD.,
For Petitioner :SRI.C.CHANDRASEKHARAN
For Respondent :SRI.LAL GEORGE
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :29/10/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.1112 OF 2010
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Dated this the 2nd day of November 2010
JUDGMENT
Basheer, J.
Appellants are the wife, children and mother of one Reghu, who succumbed
to the fatal injuries suffered by him in a road traffic accident that occurred on
February 17, 2004. Deceased Reghu was transporting his “four wheeler cart”
which was being used by him for sale of his merchandise (ground nuts) on the ill
fated day. He was transporting the four wheeler along with his other paraphernalia
in a Goods autorikshaw to the Aluva Sivarathri ground where the annual festival
was being held. It is beyond controversy that the goods vehicle turned up side
down on its way to Aluva. Deceased Reghu was caught underneath the vehicle and
sustained the fatal injuries resulting in his death. Appellants claimed a total sum of
Rs.5,85,000/- towards compensation from the owner, driver and insurer of the
above goods vehicle.
2. The Tribunal, after considering the oral and documentary evidence
available on record, found that the appellants would be entitled to get a total sum
of Rs.2,91,128 with 7% interest, towards compensation. However, the Tribunal
exonerated the insurance company from the liability to indemnify the
insured/owner of the vehicle and held that the owner and driver shall be liable to
pay compensation to the appellant.
3. Appellants impugn the above award primarily on the ground that
exoneration of the insurer is totally illegal and unsustainable. It is also contended
that the quantum fixed by the Tribunal is totally inadequate and meager. It is
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further contended by the learned counsel that the insurance company had never
disputed that the goods belonging to the deceased were being carried in the vehicle
involved in the accident.
4. The specific case of the insurance company, as could be seen from the
written statement filed by it, was that the accident had occurred due to the
negligent act of the deceased himself who travelled in the goods autorikshaw
sitting along with the driver in his seat. According to the insurance company, the
driver lost control of the vehicle since the deceased was sharing his seat. It is
contended by the learned counsel that the fact that the deceased was carrying the
goods in the vehicle was beyond controversy. But the evidence of PW2 will show
that the deceased was travelling in the vehicle sitting on the platform along with
his goods. PW2 asserted that he was sharing the driver’s seat as requested by the
driver himself.
5. We have carefully perused the oral testimony of PW2. The assertion made
by PW2 that he was in fact persuaded to share the driver’s seat at the instance of
the driver himself has not been challenged at all. However, learned counsel for the
insurance company invites our attention to Ext.A1 charge sheet filed by the police
after completing the investigation in the crime registered against the driver of the
autorikshaw. It is true that in the charge sheet, it is seen recorded that the
accident occurred while the deceased was travelling in the vehicle sitting along
with the driver. But as has been mentioned by us earlier, the presence of PW2 in
the autorikshaw has not been disputed by the insurance company. No such
question was ever put to this witness in the course of cross examination.
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6. We do not find any reason to disbelieve the oral testimony of PW2. What
remains is, only the question whether the deceased was traveling by sharing the
driver’s seat or sitting on the platform of the auto.
7. We have already noticed that the specific case of the insurance company
in the written statement was that the accident occurred only because the deceased
happened to share the driver’s seat. According to the company, the driver lost
control of the vehicle, since the deceased was sharing the driver’s seat. Be that as
it may. The fact remains that the deceased was carrying his goods in the
autorikshaw on the ill fated day. The vehicle turned turtle and the deceased
happened to be caught under the vehicle. He succumbed to the injuries later. The
short question that arises for consideration is whether the Tribunal was justified in
exonerating the insurance company from the liability to pay the compensation in
the above facts and circumstances.
8. Learned counsel for the insurance company has invited our attention to a
number of decisions in support of his plea that in such a situation, the insurance
company cannot be held liable. Particular reference has been made by learned
counsel to a decision in United India Insurance Co. Ltd. v. Suresh [2008 (4) KLT
552 SC] and also in National Insurance Co. Ltd. v. Cholleti Bharatamma and others
[(2008) 1 SCC 423]. In Suresh (supra), the claimant sustained certain injuries in
the accident that occurred while he was travelling in a goods vehicle sitting by the
side of the driver. The Tribunal held the owner and insurer of the vehicle liable to
pay the compensation repelling the contentions raised by the latter that the
claimant was not entitled to get any compensation since he was a gratuitous
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passenger. The High Court in appeal affirmed the above award. But the apex
court held thus:
“If the claimant had not been travelling in the vehicle as owner of the
goods, he shall not be covered by the policy of the insurance. In any
view of the matter in a three wheeler goods carriage, the driver could
not have allowed anybody else to share his seat. No other person
whether as a passenger or as a owner of the vehicle is supposed to
share the seat of the driver. Violation of the condition of the contract of
insurance, therefore, is approved.”
9. However, the apex court further proceeded to hold that the insurance
company would be liable to pay the amount of compensation to the claimant and
realize the same from the owner of the vehicle.
10. In Bharatamma (supra), it can be seen that the common question that
arose for consideration in a batch of appeals was whether passengers travelling in
goods carriages would be entitled to claim compensation from the insurer of those
vehicles. In other words, the question was whether or not a passenger who
accompanies his goods in a goods vehicle would be entitled to claim compensation
from the insurer. Their lordships after referring to a large number of decisions
held that passengers who were carried in goods vehicles would not be entitled to
get compensation from the insurer of those vehicles.
11. Coming back to the case on hand, we have already noticed that the
deceased was admittedly carrying his own goods in the ill fated vehicle. Though
the charge sheet indicated that the deceased was sharing the driver’s seat, the
uncontroverted oral testimony of PW2 clearly established that the deceased was
sitting on the platform of the vehicle along with his goods. In any of the two events,
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it can never be said that the deceased was not accompanying his goods. Therefore,
we have no hesitation to hold that the contention of the insurance company that the
claimants would not be entitled to claim compensation from it since the deceased
was a gratuitous passenger cannot be sustained at all. Learned counsel for the
appellants has invited our attention to a few decisions in support of his argument,
one of which is New India Assurance Co. Ltd. v. Bhudhiya Devi and others (2010
ACJ 2045). In this case, the deceased was travelling in a truck along with his cows
and buffallows. The apex court held that the insurance company would be liable to
indemnify the owner.
12. In B.V.Nagaraju v. Oriental Insurance Co. Ltd. [(1996) 4 SCC 647], the
owner of a truck instituted a petition seeking compensation for the damage caused
to his vehicle in an accident. At the time of the accident, the truck was carrying
nine persons. The policy issued by the insurance company did not cover risk of
passengers in the vehicle except employees (other than the driver) not exceeding
six, coming under the purview of the Workmen’s Compensation Act. The claim
made by the owner of the vehicle was repudiated by the company. The State
Consumer Commission allowed a sum of Rs.75,700/- as compensation. But the
National Consumer Commission reversed the order of the State Commission.
However, the apex court allowed the appeal filed by the owner and held thus:
“It is plain from the terms of the Insurance Policy that the insured
vehicle was entitled to carry 6 workmen, excluding the driver. If those
6 workmen when travelling in the vehicle, are assumed not to have
increased any risk from the point of view of the Insurance Company on
occurring of an accident, how could those added persons be said to
have contributed to the causing of it is the poser, keeping apart the
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load it was carrying. In the present case the driver of the vehicle was
not responsible for the accident. Merely by lifting a person or two, or
even three, by the driver or the cleaner of the vehicle, without the
knowledge of the owner, cannot be said to be such a fundamental
breach that the owner should, in all events, be denied indemnification.
The misuse of the vehicle was somewhat irregular though, but not so
fundamental in nature so as to put an end to the contract, unless some
factors existed which, by themselves, had gone to contribute to the
causing of the accident”.
Their lordships further laid down that “The exclusion term of the
insurance policy must be read down so as to serve the main purpose of
the policy that is to indemnify the damage caused to the vehicle.”
13. Keeping in view the dicta laid down in the judgments referred to above,
we are satisfied that the insurance company has to be ordered to pay the appellants
the compensation fixed by the Tribunal. We do so. However, the company will be
entitled to recover the amount of compensation from the owner and driver of the
offending vehicle.
Appeal is disposed of in the above terms.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
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