Saleem T.Sebastian vs C.U.Antony on 17 November, 2008

Kerala High Court
Saleem T.Sebastian vs C.U.Antony on 17 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1212 of 2007()


1. SALEEM T.SEBASTIAN, S/O SEBASTIAN,
                      ...  Petitioner

                        Vs



1. C.U.ANTONY, S/O VARU C.A,
                       ...       Respondent

2. GEORGE JOSE, S/O JOSE GEORGE,

3. NATIONAL INSURANCE CO. LTD.,

                For Petitioner  :SRI.T.V.GEORGE

                For Respondent  :SRI.K.J.SAJI ISAAC

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :17/11/2008

 O R D E R
                          M.N. KRISHNAN, J
                         -----------------------
                     M.A.C.A.No. 1212 OF 2007
                    ---------------------------------
              Dated this the 17th day of November, 2008


                              JUDGMENT

This appeal is preferred against the award of the Motor

Accident Claims Tribunal, Thodupuzha in O.P.(MV) No.87/2002. The

claimant claiming to be a Supervisor of T&T Company, got involved

in an accident. The lorry in which he was travelling turned turtle

resulting in injuries to him. The learned Tribunal found that he was

only a gratuitous passenger in a lorry and therefore he is not liable

to be indemnified by the Insurance Company. It is against that

decision the claimant has come up in appeal strongly supported by

the owner of the vehicle.

2. The picture attempted to be projected is that the claimant

as a Supervisor of T&T Company was authorised by the persons to

accompany the cement in connection with the construction of a

resort. After unloading cement, the lorry returned to Ernakulam.

In the process, he want to get down at Kodanad for the purpose of

taking money in order to pay the rental charges to the lorry driver.

Unfortunately, on account of mist the accident took place. The

Tribunal found that he has categorically stated in the F.I. Statement

M.A.C.A. 1212/2007
-2-

that he was travelling in the lorry to reach his house and therefore

declined to accept his contention that he was the representative of

the owner of the goods accompanying the vehicle. The learned

counsel would contend that in the light of the decision of this Court

reported in United India Insurance Co. Ltd. v. Suresh [2007

ACJ 262] that a person coming back after unloading goods will

maintain the status of the representative of the owner of the goods

till he reaches the destination. This matter came up before the

apex court in the decision reported in United India Insurance

Co. Ltd. v. Suresh K.K. and another [2008 ACJ 1741] , wherein

the apex court disposed of the said matter on a point that, in a

goods auto carriage which had only one seat to carry the driver,

another person was accommodated which amounts to violation of

the conditions and therefore found that the Insurance Company is

exempted from the liability. In that case the apex court did not lay

down the propositions, but in para 10 of the judgment it is

mentioned “the High Court therefore may be correct that the owner

of the goods would be covered in terms of the said profession”. The

division Bench of this court considered this question under Section

147, regarding the owner or the representative of the owner and

M.A.C.A. 1212/2007
-3-

not the goods. If a person comes back in the same vehicle to reach

destination from where he has loaded goods, he can be termed to

be a representative owner of the goods. It is a matter which

requires factual analysis.

3. From the materials produced it is seen that he is an

employee of T&T company. It is also seen that he has boarded the

lorry to come back to his place of residence. But his version is that

he wanted to get down at his house for the purpose of taking

money in order to pay the rental charges to the lorry driver. But

one thing that has to be proved in a case of this nature is, whether

he accompanied goods at the instance of the owner from the place

where it is loaded. Being a company, there must be certainly

documents to prove the same. It can be seen that the lorry

reaches the destination at about 7 O’Clock and leaves back at 11

O’Clock. Suppose he had travelled in that lorry to unload the goods

and has to come back to his original place under which

circumstances his contention will have some force and effect. So if

he is able to establish by documentary evidence that he was

travelling in the lorry which was loaded with cement as a

representative of the Company, he may be covered under Section

M.A.C.A. 1212/2007
-4-

147 of the Motor Vehicles Act. Certainly the other explanations

requires consideration by the court. The learned counsel for the

appellant would contend before me that if an opportunity is given,

he will be able to establish the same. Being a beneficial legislation

and considering the factums, I do not want to throw out the claim

on a mere technical ground. I am inclined to grant an opportunity

to the claimant to establish the factum of his entitlement under the

provisions and principles of law. Therefore I set aside the award

and remit back the case to the Tribunal with a direction to permit

to the parties concerned to adduce both documentary as well as

oral evidence in support of their respective contentions and then

dispose of the matter after deciding the status of the claimant in the

lorry and also in accordance with law.

Parties are directed to appear before the Tribunal on

29.12.2008.

M.N. KRISHNAN,JUDGE
vkm

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