IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1781 of 2007()
1. THE NEW INDIA ASSURANCE COMPANY LTD.,
... Petitioner
Vs
1. V.G.BABY, S/O. GEORGE,
... Respondent
2. SEBASTIAN, S/O. VARGHESE,
3. INDIRA, AGED ABOUT 39 YEARS,
4. ASWATHY, AGED ABOUT 14 YEARS,
5. NANDAKUMAR, S/O. K.PURUSHOTHAMAN,
For Petitioner :SRI.P.R.RAMACHANDRA MENON
For Respondent :SRI.P.SANTHOSH (PODUVAL)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :21/08/2008
O R D E R
M.N. KRISHNAN, J.
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M.A.C.A. NOs. 1781 & 2252 OF 2007
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Dated this the 21st day of August, 2008.
J U D G M E N T
These appeals are preferred against the award of the
Motor Accidents Claims Tribunal, Thrissur in O.P.(MV)
Nos.3200/01 and 3204/01. Both the claimants were
travelling in a goods auto rickshaw and they sustained
injuries in a road accident. The insurance company
contended that it was only an Act only policy and it did not
cover passengers carried in goods vehicle. The Tribunal on a
consideration of the materials awarded compensation in both
the cases and directed the insurance company, namely, the
3rd respondent therein to pay the amount. It is against that
decision, the insurance company has come up in appeal
challenging the finding of the Tribunal regarding its liability.
2. The question argued before this Court is that the
petitioners were carried as passengers in a goods vehicle and
are not covered by the policy issued by 3rd respondent.
Whereas it is stated by the claimants that the petitioners
M.A.C.A.s. 1781 &
2252 OF 2007 OF 2007
-:2:-
were carrying own tapioca in the goods carriage and so they
were the owner of the goods accompanying the goods and
therefore entitled to have statutory coverage. The carriage
of passengers in a goods auto rickshaw which has only a seat
of a driver has been considered by the Apex Court in the
recent decision reported in 2008 AIR SCW 4739, i.e.
United India Insurance Co. Ltd. v. Suresh. In
paragraph 13 the Apex Court held,
“If the claimant had not been
travelling in the vehicle as owner of the
goods, he shall not be covered by the policy
of 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.”
But in that case invoking the powers of the Apex Court it
directed the insurance company to pay the amount. But
M.A.C.A.s. 1781 &
2252 OF 2007 OF 2007
-:3:-
such a power cannot be exercised by this Court and status of
the passengers in a goods vehicle amounts to that of a
gratuitous passenger and as they are not third parties they
are not bound to be indemnified by the insurance company
for the reason that it is out of the insurance contract
between the owner and the insurer. Therefore the finding of
the Tribunal that the insurance company is bound to pay the
amount is set aside and the award is modified and the
insurance company is exonerated from the liability and
respondents 1 and 2 in the claim petition are directed to pay
the amount to the claimant jointly and severally. The
amount deposited by the insurance company, if not already
disbursed, should be given back to the insurance company.
The MACAs. are disposed of accordingly.
M.N. KRISHNAN, JUDGE.
ul/-