High Court Kerala High Court

Rajan.P. vs K.J.John on 19 November, 2008

Kerala High Court
Rajan.P. vs K.J.John on 19 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 228 of 2006()


1. RAJAN.P., S/O.PULLAN,CHIRAYIL
                      ...  Petitioner

                        Vs



1. K.J.JOHN, S/O.IDICHERIYAN,
                       ...       Respondent

2. UDAYAN.K., S/O.KUNJAN PILLAI,

3. NATIONAL INSURANCE CO. LTD.,

                For Petitioner  :SRI.VIJU THOMAS

                For Respondent  :SRI.MATHEWS JACOB (SR.)

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

 Dated :19/11/2008

 O R D E R
                                                                                   C.R.
                    C.N.RAMACHANDRAN NAIR &
                           HARUN-UL-RASHID, JJ.
               ....................................................................
                           M.A.C.A. No.228 of 2006
               ....................................................................
             Dated this the 19th day of November, 2008.

                                      JUDGMENT

Ramachandran Nair, J.

The appeal is filed against the order of the MACT dismissing a

claim petition filed by the appellant for compensation for injury

sustained by him in an accident claimed by him to be road accident.

We have heard counsel appearing for the appellant, Senior counsel

appearing for the Insurance Company and counsel appearing for the

registered owner of the vehicle involved in the accident.

2. The facts leading to the case are the following. On 4.3.1998 at

around 7.30 p.m. a load of marble was being unloaded in the house

premises of a person who purchased and transported marble to his

house in the same truck. The appellant’s case is that while unloading

the marble, driver of the vehicle took it in the reverse gear which led to

a marble piece falling on his left leg causing serious injury. Before the

MACT, Insurance Company pleaded that accident occurred in a private

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premises i.e. in the compound of a house and that accident is not on

account of any rash and negligent driving of the vehicle and it is an

accident that took place while unloading the goods from a stationary

truck. The MACT accepted the plea of the Insurance Company and

held that there is no policy coverage because accident did not take

place in a public place which is a requirement for liability for the

Insurance Company under Section 147 of the Motor Vehicles Act.

Counsel for the appellant submitted that accident occurred while the

vehicle was taken in the reverse direction by the driver when marble

was being unloaded. However, Senior counsel for the Insurance

Company brought to our notice the Police record which shows that for

the accident occurred on 4.3.1998, a private complaint was filed on

23.7.1998 and pursuant to court orders, the Investigation Officer found

that the accident happened when marble was unloaded from the

stationary truck and based on this he contended that the case of the

appellant that accident took place when the driver took the vehicle in

the reverse is a bogus one. The belated complaint filed and the case

put forward by the appellant that the accident took place when the

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vehicle was moved in the reverse direction by the driver is an absolute

bogus case and is created only to ensure recovery of compensation

from the Insurance Company. Needless to mention that all involved

including the driver of the vehicle helped in the venture. However, we

believe the findings in the final report submitted by the Police which is

strengthened by the delay in filing of complaint itself and we, therefore,

hold that the accident occurred while marble was unloaded from the

stationary lorry.

3. Even though we have found part of the case put forward by the

appellant against him, we still feel the ground on which MACT

declined compensation is not tenable because MACT decided the case

against the appellant only because the accident took place in a private

premises i.e. in the house compound. Counsel for the appellant relied

on decisions of this court in NAZEEMA V. SEBASTIAN (1987(1)

KLT 370), UNITED INDIA INSURANCE COMPANY V. PIERCE

LESLIE INDIA LTD. (2000(1) KLJ 460) and ALIAS V. PAUL (2003

(2) KLT 992). In one case this court held that when entry of transport

vehicle is permitted in a factory premises, such premises constitute a

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“public place” for the purpose of liability for compensation payable by

the Insurance Company under Section 147 of the Motor Vehicles Act.

Similarly in the other two cases this court held that road leading to a

stone quarry and workshop premises can be treated as public place for

the purpose of Section 2(34) of the Motor Vehicles Act. Section 2

(34) of the Motor Vehicles Act defines public place as follows:

“Public place” means a road street way, or other
place, whether a thoroughfare or not, to which the public
have a right of access and includes any place or stand at
which passengers are picked up or set down by a stage
carriage.

From the above we are of the view that public place does not have a

restricted meaning in as much as it is not to be taken as a place where

public have uncontrolled access at all times. “Public place” for the

purpose of the Act has to be understood with reference to the places to

which a vehicle has access. It is specifically mentioned in the

definition that any place of stand at which passengers are picked up or

set down by a stage carriage is a public place. While this applies to

vehicles carrying passengers, the definition does not deal with places

of access to goods vehicles. We are of the view that wherever goods

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vehicles are allowed entry, the workers engaged in loading, unloading

and the crew also have access. In this case the person involved is a

headload worker and obviously he has a right of access to the place for

his work, though he is not a crew member or a regular employee of the

vehicle. While this is a case of truck allowed inside the house

compound where construction was carrying on, for the purpose of

unloading of goods, several godowns provide access to goods vehicles

and headload workers so that loading and unloading from vehicles are

done in the godowns. Obviously construction sites, godowns etc. are

not places where public have uncontrolled right of access. However,

access is provided to employees, crew members of goods vehicles,

loading-unloading workers etc. for the purpose of carrying out their

work involving use of the vehicle. Unless places like this where

restricted entry is permitted to specified class of people for the purpose

of handling goods in the form of loading and unloading of goods are

treated as public places, the very purpose of insurance coverage under

Section 147 of the Act will be defeated. It is clear from Section 147

that liability under the policy is not restricted for accident taking place

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on public roads. On the other hand, instead of using public road, the

coverage under the policy is for accidents taking place in public place

which in our view, has a wide meaning covering private places of the

kind referred above where restricted access is provided to limited class

of public which can be even for specific purposes. We, therefore, hold

that the private premises of a house where goods vehicle is allowed

entry, is a public place for the purpose of Section 2(34) of the Motor

Vehicles Act which leads to liability for the Insurance Company

subject to satisfying other conditions of the policy.

4. The next question to be considered is whether the appellant is

entitled to compensation for the injury sustained while unloading

goods from the stationary truck. Counsel has relied on decision of this

court in NEW INDIA ASSURANCE CO. LTD. V. LAKSHMI (2000

(3) KLT 80) whereunder this court has held that injury sustained

during the course of unloading goods is an accident taking place on

account of use of the vehicle. The use of a transport vehicle obviously

involves loading of goods, transporting the same and unloading the

goods. All those engaged in loading and unloading are using the truck

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during such time. Therefore, any accident arising during loading and

unloading will also be an accident arising on account of use of the

vehicle. Therefore, the appellant’s claim for compensation against the

Insurance Company is maintainable because the accident arose on

account of use of the vehicle and as already held by us, the accident

occurred in a public place. However, the MACT has not considered

the question whether the claim is maintainable under Section 166 of

the Motor Vehicles Act because of it’s finding that there is no

coverage under the policy as the accident took place in a private

premises. Since we have found this issue in favour of the appellants,

we have to necessarily remand the matter to the MACT for

reconsideration. However, we make it clear that the MACT should

consider the case of the Insurance Company based on the final report

of the Police Officer who conducted the investigation and found that

accident took place while goods were loaded from stationary truck and

the case put forward by the appellant that the accident took place while

vehicle was reversed by the driver is factually incorrect. The MACT is

directed to examine the claim critically with specific reference to the

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final report of the Police and the belated private complaint filed by the

appellant four months after the date of the accident. The appellant will

produce copy of this judgment before the MACT for issuing notice to

respondents and for adjudicating the matter afresh.

C.N.RAMACHANDRAN NAIR
Judge

HARUN-UL-RASHID
Judge
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