{"id":250134,"date":"2010-10-29T00:00:00","date_gmt":"2010-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/premalatha-vs-shaji-on-29-october-2010"},"modified":"2015-10-15T09:50:10","modified_gmt":"2015-10-15T04:20:10","slug":"premalatha-vs-shaji-on-29-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/premalatha-vs-shaji-on-29-october-2010","title":{"rendered":"Premalatha vs Shaji on 29 October, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Premalatha vs Shaji on 29 October, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMACA.No. 1112 of 2010()\n\n\n1. PREMALATHA, W\/O.REGHU,\n                      ...  Petitioner\n2. REMYA, AGED 22, D\/O.REGHU,\n3. RENJITHA, AGED 20, D\/O.REGHU,\n4. RENJU, AGED 17, S\/O.REGHU,\n5. LEKSHMI, AGED 81, W\/O.NARAYANAN,\n\n                        Vs\n\n\n\n1. SHAJI, S\/O.JOBOY, MALIAKAL HOUSE,\n                       ...       Respondent\n\n2. ABDUL SALAM, S\/O.SULAIMAN,\n\n3. ABDUL SATHAR, S\/O.ABDUL RAHIMAN,\n\n4. THE NATIONAL INSURANCE CO.LTD.,\n\n                For Petitioner  :SRI.C.CHANDRASEKHARAN\n\n                For Respondent  :SRI.LAL GEORGE\n\nThe Hon'ble MR. Justice A.K.BASHEER\nThe Hon'ble MR. Justice P.Q.BARKATH ALI\n\n Dated :29\/10\/2010\n\n O R D E R\n                     A.K.BASHEER & P.Q.BARKATH ALI, JJ.\n                       - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                                 M.A.C.A.No.1112 OF 2010\n                       - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                      Dated this the 2nd day of November 2010\n\n                                          JUDGMENT\n<\/pre>\n
Basheer, J.\n<\/p>\n
\n
      Appellants are the wife, children and mother of one Reghu, who succumbed<\/p>\n
to the fatal injuries suffered by him in a road traffic accident that occurred on<\/p>\n
February 17, 2004. Deceased Reghu was transporting his “four wheeler cart”<\/p>\n
which was being used by him for sale of his merchandise (ground nuts) on the ill<\/p>\n
fated day. He was transporting the four wheeler along with his other paraphernalia<\/p>\n
in a Goods autorikshaw to the Aluva Sivarathri ground where the annual festival<\/p>\n
was being held.     It is beyond controversy that the goods vehicle turned up side<\/p>\n
down on its way to Aluva. Deceased Reghu was caught underneath the vehicle and<\/p>\n
sustained the fatal injuries resulting in his death. Appellants claimed a total sum of<\/p>\n
Rs.5,85,000\/- towards compensation from the owner, driver and insurer of the<\/p>\n
above goods vehicle.\n<\/p>\n
      2.   The Tribunal, after considering the oral and documentary evidence<\/p>\n
available on record, found that the appellants would be entitled to get a total sum<\/p>\n
of Rs.2,91,128 with 7% interest, towards compensation. However, the Tribunal<\/p>\n
exonerated the insurance company from the liability to indemnify the<\/p>\n
insured\/owner of the vehicle and held that the owner and driver shall be liable to<\/p>\n
pay compensation to the appellant.\n<\/p>\n
      3.   Appellants impugn the above award primarily on the ground that<\/p>\n
exoneration of the insurer is totally illegal and unsustainable. It is also contended<\/p>\n
that the quantum fixed by the Tribunal is totally inadequate and meager. It is<\/p>\n
M.A.C.A.No.1112 OF 2010
\n                                        :: 2 ::\n<\/p>\n
\n
further contended by the learned counsel that the insurance company had never<\/p>\n
disputed that the goods belonging to the deceased were being carried in the vehicle<\/p>\n
involved in the accident.\n<\/p>\n
      4. The specific case of the insurance company, as could be seen from the<\/p>\n
written statement filed by it, was that the accident had occurred due to the<\/p>\n
negligent act of the deceased himself who travelled in the goods autorikshaw<\/p>\n
sitting along with the driver in his seat. According to the insurance company, the<\/p>\n
driver lost control of the vehicle since the deceased was sharing his seat. It is<\/p>\n
contended by the learned counsel that the fact that the deceased was carrying the<\/p>\n
goods in the vehicle was beyond controversy. But the evidence of PW2 will show<\/p>\n
that the deceased was travelling in the vehicle sitting on the platform along with<\/p>\n
his goods. PW2 asserted that he was sharing the driver’s seat as requested by the<\/p>\n
driver himself.\n<\/p>\n
      5. We have carefully perused the oral testimony of PW2. The assertion made<\/p>\n
by PW2 that he was in fact persuaded to share the driver’s seat at the instance of<\/p>\n
the driver himself has not been challenged at all. However, learned counsel for the<\/p>\n
insurance company invites our attention to Ext.A1 charge sheet filed by the police<\/p>\n
after completing the investigation in the crime registered against the driver of the<\/p>\n
autorikshaw.    It is true that in the charge sheet, it is seen recorded that the<\/p>\n
accident occurred while the deceased was travelling in the vehicle sitting along<\/p>\n
with the driver. But as has been mentioned by us earlier, the presence of PW2 in<\/p>\n
the autorikshaw has not been disputed by the insurance company.           No such<\/p>\n
question was ever put to this witness in the course of cross examination.<\/p>\n
M.A.C.A.No.1112 OF 2010
\n                                         :: 3 ::\n<\/p>\n
\n
      6. We do not find any reason to disbelieve the oral testimony of PW2. What<\/p>\n
remains is, only the question whether the deceased was traveling by sharing the<\/p>\n
driver’s seat or sitting on the platform of the auto.\n<\/p>\n
      7. We have already noticed that the specific case of the insurance company<\/p>\n
in the written statement was that the accident occurred only because the deceased<\/p>\n
happened to share the driver’s seat. According to the company, the driver lost<\/p>\n
control of the vehicle, since the deceased was sharing the driver’s seat. Be that as<\/p>\n
it may.    The fact remains that the deceased was carrying his goods in the<\/p>\n
autorikshaw on the ill fated day.      The vehicle turned turtle and the deceased<\/p>\n
happened to be caught under the vehicle. He succumbed to the injuries later. The<\/p>\n
short question that arises for consideration is whether the Tribunal was justified in<\/p>\n
exonerating the insurance company from the liability to pay the compensation in<\/p>\n
the above facts and circumstances.\n<\/p>\n
      8. Learned counsel for the insurance company has invited our attention to a<\/p>\n
number of decisions in support of his plea that in such a situation, the insurance<\/p>\n
company cannot be held liable. Particular reference has been made by learned<\/p>\n
counsel to a decision in United India Insurance Co. Ltd. v. Suresh<\/a> [2008 (4) KLT<\/p>\n
552 SC] and also in National Insurance Co. Ltd. v. Cholleti Bharatamma and others<\/a><\/p>\n
[(2008) 1 SCC 423].      In Suresh (supra), the claimant sustained certain injuries in<\/p>\n
the accident that occurred while he was travelling in a goods vehicle sitting by the<\/p>\n
side of the driver. The Tribunal held the owner and insurer of the vehicle liable to<\/p>\n
pay the compensation repelling the contentions raised by the latter that the<\/p>\n
claimant was not entitled to get any compensation since he was a gratuitous<\/p>\n
M.A.C.A.No.1112 OF 2010
\n                                         :: 4 ::\n<\/p>\n
\n
passenger. The High Court in appeal affirmed the above award. But the apex<\/p>\n
court held thus:\n<\/p>\n
      “If the claimant had not been travelling in the vehicle as owner of the<\/p>\n
      goods, he shall not be covered by the policy of the insurance. In any<\/p>\n
      view of the matter in a three wheeler goods carriage, the driver could<\/p>\n
      not have allowed anybody else to share his seat.        No other person<\/p>\n
      whether as a passenger or as a owner of the vehicle is supposed to<\/p>\n
      share the seat of the driver. Violation of the condition of the contract of<\/p>\n
      insurance, therefore, is approved.”<\/p><\/blockquote>\n
\n
       9. However, the apex court further proceeded to hold that the insurance<\/p>\n
company would be liable to pay the amount of compensation to the claimant and<\/p>\n
realize the same from the owner of the vehicle.\n<\/p>\n
       10. In Bharatamma (supra), it can be seen that the common question that<\/p>\n
arose for consideration in a batch of appeals was whether passengers travelling in<\/p>\n
goods carriages would be entitled to claim compensation from the insurer of those<\/p>\n
vehicles.   In other words, the question was whether or not a passenger who<\/p>\n
accompanies his goods in a goods vehicle would be entitled to claim compensation<\/p>\n
from the insurer.    Their lordships after referring to a large number of decisions<\/p>\n
held that passengers who were carried in goods vehicles would not be entitled to<\/p>\n
get compensation from the insurer of those vehicles.<\/p>\n
       11. Coming back to the case on hand, we have already noticed that the<\/p>\n
deceased was admittedly carrying his own goods in the ill fated vehicle. Though<\/p>\n
the charge sheet indicated that the deceased was sharing the driver’s seat, the<\/p>\n
uncontroverted oral testimony of PW2 clearly established that the deceased was<\/p>\n
sitting on the platform of the vehicle along with his goods. In any of the two events,<\/p>\n
M.A.C.A.No.1112 OF 2010
\n                                        :: 5 ::\n<\/p>\n
\n
it can never be said that the deceased was not accompanying his goods. Therefore,<\/p>\n
we have no hesitation to hold that the contention of the insurance company that the<\/p>\n
claimants would not be entitled to claim compensation from it since the deceased<\/p>\n
was a gratuitous passenger cannot be sustained at all. Learned counsel for the<\/p>\n
appellants has invited our attention to a few decisions in support of his argument,<\/p>\n
one of which is New India Assurance Co. Ltd. v. Bhudhiya Devi and others<\/a> (2010<\/p>\n
ACJ 2045). In this case, the deceased was travelling in a truck along with his cows<\/p>\n
and buffallows. The apex court held that the insurance company would be liable to<\/p>\n
indemnify the owner.\n<\/p>\n
       12. In B.V.Nagaraju v. Oriental Insurance Co. Ltd<\/a>. [(1996) 4 SCC 647], the<\/p>\n
owner of a truck instituted a petition seeking compensation for the damage caused<\/p>\n
to his vehicle in an accident. At the time of the accident, the truck was carrying<\/p>\n
nine persons. The policy issued by the insurance company did not cover risk of<\/p>\n
passengers in the vehicle except employees (other than the driver) not exceeding<\/p>\n
six, coming under the purview of the Workmen’s Compensation Act<\/a>. The claim<\/p>\n
made by the owner of the vehicle was repudiated by the company.           The State<\/p>\n
Consumer Commission allowed a sum of Rs.75,700\/- as compensation. But the<\/p>\n
National Consumer Commission reversed the order of the State Commission.<\/p>\n
However, the apex court allowed the appeal filed by the owner and held thus:<\/p>\n
       “It is plain from the terms of the Insurance Policy that the insured<\/p>\n
       vehicle was entitled to carry 6 workmen, excluding the driver. If those<\/p>\n
       6 workmen when travelling in the vehicle, are assumed not to have<\/p>\n
       increased any risk from the point of view of the Insurance Company on<\/p>\n
       occurring of an accident, how could those added persons be said to<\/p>\n
       have contributed to the causing of it is the poser, keeping apart the<\/p>\n
M.A.C.A.No.1112 OF 2010
\n                                        :: 6 ::\n<\/p><\/blockquote>\n
\n
      load it was carrying. In the present case the driver of the vehicle was<\/p>\n
      not responsible for the accident. Merely by lifting a person or two, or<\/p>\n
      even three, by the driver or the cleaner of the vehicle, without the<\/p>\n
      knowledge of the owner, cannot be said to be such a fundamental<\/p>\n
      breach that the owner should, in all events, be denied indemnification.<\/p>\n
      The misuse of the vehicle was somewhat irregular though, but not so<\/p>\n
      fundamental in nature so as to put an end to the contract, unless some<\/p>\n
      factors existed which, by themselves, had gone to contribute to the<\/p>\n
      causing of the accident”.\n<\/p><\/blockquote>\n
             Their lordships further laid down that “The exclusion term of the<\/p>\n
      insurance policy must be read down so as to serve the main purpose of<\/p>\n
      the policy that is to indemnify the damage caused to the vehicle.”<\/p><\/blockquote>\n
\n
       13. Keeping in view the dicta laid down in the judgments referred to above,<\/p>\n
we are satisfied that the insurance company has to be ordered to pay the appellants<\/p>\n
the compensation fixed by the Tribunal. We do so. However, the company will be<\/p>\n
entitled to recover the amount of compensation from the owner and driver of the<\/p>\n
offending vehicle.\n<\/p>\n
       Appeal is disposed of in the above terms.\n<\/p>\n
\n
                                                           A.K.BASHEER, JUDGE<\/p>\n
                                                      P.Q.BARKATH ALI, JUDGE
\njes<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Premalatha vs Shaji on 29 October, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM MACA.No. 1112 of 2010() 1. PREMALATHA, W\/O.REGHU, … Petitioner 2. REMYA, AGED 22, D\/O.REGHU, 3. RENJITHA, AGED 20, D\/O.REGHU, 4. RENJU, AGED 17, S\/O.REGHU, 5. LEKSHMI, AGED 81, W\/O.NARAYANAN, Vs 1. SHAJI, S\/O.JOBOY, MALIAKAL HOUSE, … Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-250134","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nPremalatha vs Shaji on 29 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/premalatha-vs-shaji-on-29-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Premalatha vs Shaji on 29 October, 2010 - 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