IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1381 of 2006()
1. THE NEW INDIA ASSURANCE COMPANY LTD.,
... Petitioner
Vs
1. A.UNNI, S/O.APPU,
... Respondent
2. RAJU, S/O.SAMUEL,
3. PARAMESWARAN, S/O.CHELLAYYAN NADAR,
For Petitioner :SRI.P.R.RAMACHANDRA MENON
For Respondent :SRI.G.SUDHEER KARAKONAM
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :05/09/2008
O R D E R
J.B.KOSHY & THOMAS P. JOSEPH, JJ.
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M.A.C.A.NO.1381 OF 2006 ()
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Dated this the 5th day of September, 2008
J U D G M E N T
KOSHY,J.
First respondent in this appeal sustained injuries in a
motor vehicle accident on 31.5.2003 while he was travelling in
a lorry along with 27 other persons. Applicant (1st respondent
in this appeal) claimed compensation for injuries sustained in
the accident contending that the driver of the lorry was
negligent, and therefore, driver, owner and Insurance
company which insured the lorry are liable to pay
compensation. The tribunal awarded an amount of
Rs.1,06,050/- with interest. Earlier when compensation was
awarded under Section 140 of the Motor Vehicles Act, the
Insurance company challenged their liability and the matter
was remanded to consider the question whether the Insurance
company is liable to pay the amount. Contention of the
MACA.1381/06 2
Insurance company is that Insurance company is not liable to
pay the amount as the claimant was a passenger in a goods
vehicle. The accident occurred in 2003. It is true that if the
passenger was an owner or agent of the owner of the goods,
they are covered in view of the amendment of the Motor
Vehicles Act with effect from 24.11.1994. However, in this
case, even though the accident occurred after the amendment
of the Act, insurance company is not liable to pay
compensation as injured was not travelling with goods as
owner or agent of the owner of the goods. Contention of the
appellant/1st respondent was that all the 27 persons travelling
were loading and unloading workers and that they were going
for loading the goods. But admittedly, they were not
travelling along with the goods, it is a mini lorry and they
were only passengers in the lorry and they are not employed
by the lorry owner. In these circumstances, in view of the
Honorable Supreme Court’s decision in New India
Insurance Co. Ltd. v. Asha Rani and others ((2003) 2
SCC 223), the Insurance company is not liable to pay the
amount. It is submitted that an amount of Rs.25,000/- was
MACA.1381/06 3
deposited under Section 140 and also another Rs.25,000/- was
deposited as a condition precedent for filing the appeal.
Considering the facts and circumstances of the case, the
above amount can be released to the claimant. However, that
amount can be recovered by the Insurance company from the
insured. Balance amount need not be deposited by the
Insurance company and it can be recovered by the
1st respondent claimant jointly and severally from the driver
and the owner. Appeal is accordingly partly allowed.
J.B.KOSHY, JUDGE
THOMAS P. JOSEPH, JUDGE
prp
J.B.KOSHY & THOMAS P. JOSEPH, JJ.
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M.F.A.NO. OF 2006 ()
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J U D G M E N T
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5th September, 2008