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
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M.A.C.A.No. 1212 OF 2007
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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
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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
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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
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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
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