IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1054 of 2004(C)
1. UNITED INDIA INSURANCE COMPANY LIMITED
... Petitioner
Vs
1. MANOJ S/O. SARASAN, KATTAYATH COLONY,
... Respondent
2. SURESH S/O. PARAMESWARAN,
3. SANTHOSHKUMAR, S/O. RAMAKRISHNAN,
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.A.ANTONY
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :14/06/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. 1054 of 2004
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DATED: JUNE 14, 2010
JUDGMENT
Basheer, J.
The appellant-company is the insurer of a goods autorickshaw,
which met with an accident while carrying some goods and the owner
thereof, in it. The Tribunal after considering the claim of the
victim/owner of the goods, passed an award directing the appellant to
pay a sum of Rs.48,750/- towards compensation with 9% interest per
annum.
2. The appellant takes exception to the above award
contending primarily that the Tribunal ought to have exonerated it
from the liability to indemnify the insured/owner of the vehicle in as
much as;
(a) the claimant was not the owner of the goods which was
allegedly being carried in the goods vehicle, and;
(b) the owner and driver of the vehicle were not supposed to
allow the claimant to travel in the said vehicle which did not have
any provision to accommodate a passenger, be it the owner of
M.A.C.A. 1054 of 2004 2
the goods or a gratuitous passenger.
The above contentions were repelled by the Tribunal. Hence this
appeal.
3. Sri Mathews Jacob, learned senior counsel who appears for
the appellant, lays heavy emphasis on the fact that no provision had
been admittedly made in the goods autorickshaw to accommodate the
owner of the goods as a passenger. He points out that a goods
autorickshaw is provided only with a driver’s seat and nothing more.
It is further contended by the learned senior counsel that there was
absolutely no evidence to show that the claimant was the owner of the
goods.
4. Sec.147(1)(a)(i) of the Motor Vehicles Act deals with the
liability of the insurer to pay compensation against any liability which
may be incurred in respect of the death of or bodily injury to any
person including the owner of the goods or his authorised
representative carried in the vehicle. The above liability of the insurer
in respect of any person, including the owner of the goods in a goods
vehicle was incorporated in the Act, through an amendment in Act 54
of 1994 with effect from November 14, 1994. Though the appellant
had contended that the claimant was not the owner of the goods, the
Tribunal had repelled the above contention in the absence of any
M.A.C.A. 1054 of 2004 3
contra evidence adduced by the appellant.
5. As regards the contention about the absence of any seating
provision in the goods autorickshaw to accommodate the owner of the
goods, it has to be noticed that the owner who accompanies his goods
in the vehicle cannot be penalised if the owner or driver of the vehicle
accommodates him in the vehicle in violation of the policy conditions.
Learned senior counsel contends that when no provision has been
made in a goods autorickshaw to accommodate the owner of the
goods, there can be no doubt that the insurer will not be liable to
indemnify the owner of the vehicle. In other words, the contention is
that the appellant/Insurance Company will have absolutely no liability
since the claimant had chosen to travel in a vehicle which did not even
have a seat provided for such travel.
6. We are afraid, the above contention is wholly misconceived.
An owner of the goods is entitled to accompany his goods. It may be
true that in a goods autorickshaw no separate seat is provided to
accommodate the owner of the goods while he is accompanying it. He
may, in such a contingency, share the seat of the driver. But, if the
owner and/or driver of the insured vehicle accommodates the owner of
the goods in the vehicle, such action can be treated only as a violation
of the policy conditions.
M.A.C.A. 1054 of 2004 4
7. Their Lordships of the Supreme Court in United India
Insurance Co.Ltd. v. Suresh {2008 (4) KLT 552 (SC)} has taken such
a view. The question that came up for consideration in the above
case was whether a person who hired a goods vehicle would come
within the purview of S.147(1) of the Act, although no goods were
being carried at the time of the accident. While reiterating the well
settled legal position as laid down in National Insurance Co. Ltd. v.
Baljit Kaur {(2004) 2 SCC 1} that the term “any person” envisaged
under S.147(1)(b)(i) shall not include any gratuitous passenger, their
Lordships held that 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. To put it differently, no gratuitous passenger can be
allowed to travel in a goods vehicle and not even the owner of the
vehicle can share the seat of the driver in a goods autorickshaw. But,
it was held that if the owner of the goods is allowed to share the seat
of the driver, it will be only at the risk and peril of the owner/insured of
the vehicle.
8. For the reasons stated above, the contentions raised by the
appellant in this case are liable to be repelled. We do so. However,
it will be open to the appellant to recover the amount of compensation
now ordered to be paid to the claimant from the owner of the vehicle
M.A.C.A. 1054 of 2004 5
after making payment to the claimant.
With the above modification in the award, the appeal is
dismissed.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
mt/-