United India Insurance Co.Ltd vs Tharmaraj And Others

Kerala High Court

United India Insurance Co.Ltd vs Tharmaraj And Others on 21 May, 2024

Author: Mary Joseph

Bench: Mary Joseph

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MRS. JUSTICE MARY JOSEPH
        TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                          MACA NO. 54 OF 2010
AGAINST THE AWARD DATED 31.07.2009 IN OP(MV) NO.681 OF 2004 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,NEYYATTINKARA
APPELLANT/3RD RESPONDENT:

             UNITED INDIA INSURANCE COMPANY LTD. II ND FLOOR,
             CWC BUILDING, L.M.S COMPOUND, TRIVANDRUM,
             REPRESENTED BY THE REGIONAL MANAGER, REGIONAL OFFICE,
             M.G.ROAD, ERNAKULAM.

             BY ADV SRI.S.ARUN RAJ
RESPONDENTS/CLAIMANTS 1-4 & RESPONDENTS 1 & 2:

    1        THARMARAJ, S/O.KANTHAYYA,IDENTITY CARD NO.114,
             KOZHIVILA REFUGEES SETTLEMENT COLONY, NEAR
             GOVT.H.S.KOZHIVILA METHUKUMMAL VILLAGE, VILAVANCODU
             TALUK, K.K.DISTRICT.
    2        THEVAMONY, W/O.THARMARAJ,
             IDENTITY CARD NO.114, -DO-
    3        NAGAVANI, D/O. THARMARAJ,
             IDENTITY CARD NO.114, -DO-
    4        RAVINDRANATH, S/O. THARMARAJ,
             IDENTITY CARD NO.114, -DO-
    5        A.JOHN BUCKLY, S/O.ALEXANDER,
             J.B.HOUSE,MAIN ROAD, P.P.M.JUNCTION,PARASSALA P.O.
    6        M.XAVIER, S/O.MARIYANAYAKAM,
             R.C.STREET,KALIYIKAVILA P.O., K.K.DIST.
             R1 TO R4 BY ADV SRI.R.T.PRADEEP


THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
03.01.2024, THE COURT ON 21.05.2024 DELIVERED THE FOLLOWING:
 M.A.C.A.No.54 of 2010

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                            JUDGMENT

Dated this the 21st day of May, 2024 The appeal on hand is directed against an award passed by Motor Accidents Claims Tribunal, Neyyattinkara (for short, 'the Tribunal') on 31.07.2009 in O.P. (M.V.) No.681/2004. The appellant is the 3 rd respondent, who was none other than the insurer of the offending vehicle. The Original Petition was filed by the legal heirs of one Mr.Tamil Selvan who died in the motor accident.

2. For the sake of convenience, the parties to this Appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition.

3. Petitioners alleged in the Original Petition that the deceased was accompanying goods loaded in a mini lorry bearing Registration No. KL-08-E-8233 and when it reached at Karally turning in Vizhinjam-Parassala Kaliyikavila road, it overturned due to the rash and M.A.C.A.No.54 of 2010 3 negligent driving by it's driver and thereby he sustained serious injures. Raising a claim for `5,00,000/- as compensation, the above Original Petition was filed arraying the owner, the driver and the insurer of the mini lorry respectively as respondents 1 to 3.

4. All respondents were served with notice from the Tribunal. Respondents 1 and 2 did not turn upto contest the Original Petition in spite of receipt of notice and therefore, were declared as exparte by the Tribunal. 3rd respondent filed written statement admitting insurance coverage for the mini lorry bearing Registration No.KL-08- E-8233 as on date of the motor accident. It was contended that the vehicle involved in the motor accident was a goods carriage which had a maximum seating capacity of three, including its driver and as per the criminal case records, it is found that five persons have travelled in the mini lorry. Thus it was contended that they are not liable to pay any compensation to the M.A.C.A.No.54 of 2010 4 petitioners as there was violation of the permit and the policy conditions. Claims of the petitioners regarding the age and the income of the deceased, the nature of injuries sustained and the treatment undergone by him were disputed. Compensation claimed under various heads was also disputed for its exorbitance.

5. Both parties adduced documentary evidence before the Tribunal. Exts. A1 to A12 were marked on the side of the petitioner. Respondents marked Exts.B1 to B3 in evidence. The Tribunal found on the basis of the FIR and the chargesheet marked in evidence respectively as Exts.A1 and A2 that the motor accident in question was occurred due to the rash and negligent driving of the mini lorry bearing Registration No.KL-08-E-8233 by it's driver.

6. The Tribunal found on the basis of the postmortem certificate marked in evidence as Ext.A4 that Mr.Tamil Selvan died due to the injuries sustained by him in the motor accident in question. Accordingly, a sum of M.A.C.A.No.54 of 2010 5 `3,54,000/- was awarded as the compensation and the 3 rd respondent was directed to pay the said amount in favour of the petitioners, with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. Proportionate costs was also ordered. Aggrieved by the direction of the Tribunal to pay the compensation arrived at in favour of the petitioners and thereby to indemnify the insured, the 3 rd respondent has approached this Court in the appeal on hand.

7. The learned counsel for the 3rd respondent contended on the contrary that the Tribunal ought not to have fixed liability on them to indemnify the insured. According to him the claimants does not have a case that the deceased was an employee of the 1 st respondent and therefore, he was only a gratuitous passenger in the goods carriage and thus the insurer is not liable to satisfy the award.

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8. The learned counsel for the appellant has relied on The New India Assurance Co.Ltd. V. Daisy Paul [ 2021 (5) KLT SN 4 (C.No.4)] to fortify his contention. The dictum laid down was that insurer cannot be directed to pay compensation in favour of a gratuitious passenger who sustained injuries while travelling in a vehicle covered by an Act only policy, since premium was not paid by the insured to cover his risk.

9. On a perusal of the averments made by the petitioners in the Original Petition, it is seen that the motor accident in question was occurred due to the rash and negligent driving of the mini lorry by the 2 nd respondent while the deceased was accompanying the goods loaded there. The petitioners does not have a case that the deceased was an employee of the 1 st respondent. Moreover going by the final report marked in evidence as Ext.A2, the deceased Tamil Selvan was accompanying the goods by travelling outside the cabin of the mini lorry. M.A.C.A.No.54 of 2010 7

10. The learned counsel for the appellant has relied on The New India Assurance Company Ltd. V. Alekutty Antony and Ors. [2009 (4) KLT 130] to rest his contention that the deceased who was travelling outside the cabin of the goods carriage was not an 'authorised representative' of the owner of the goods. The above case was decided on the strength of the dictum in National Insurance Co.Ltd V. Cholleti Bharatamma and Ors. [2008 ACJ 268] wherein it was held that the persons who are travelling inside the cabin of the vehicle can only be considered as authorised representative of the owner of the goods. The insurer cannot be fastened with liability to indemnify the insured for the injuries sustained to persons accompanying the goods by travelling on the platform of the goods carriage, outside the cabin.

11. The mini lorry being a goods carriage, insured with the 3rd respondent as a goods carrying commercial vehicle, the risk of the deceased as a gratuitous passenger M.A.C.A.No.54 of 2010 8 there, is not covered under the policy issued, it being an Act only one. Furthermore, by travelling outside the cabin of the mini lorry, the deceased has violated the law relating to the motor vehicles and also the permit stood issued for the vehicle. Therefore, it can be safely concluded that the status of the deceased at the relevant time of the motor accident was that of a gratuitous passenger in the mini lorry.

12. In the light of the discussion made hereinabove, the 3rd respondent/insurer has no liability to indemnify the 1st respondent/owner for the compensation stood awarded by the Tribunal in favour of the petitioners. The Tribunal ought to have exonerated the 3rd respondent from liability to indemnify the owner-cum-insured of the vehicle. The Tribunal failed to apply its mind to the pleadings as well as the documentary evidence adduced by the petitioners, while fastening liability on the 3rd respondent to indemnify the insured.

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13. The learned counsel for the petitioners urged on the basis of Manura Khatun & Ors. v. Rajesh Kr. Singh & Ors. [2017 (4) SCC 796] to direct the insurer to pay the compensation and to get recovery of the amount from the insured to meet the ends of justice despite the fact that the claimant therein was a gratuitous passenger.

14. It is revealed from a reading of the dictum in the case cited that, the Apex Court never intended the direction issued to be acted upon as a precedent. According to the honorable Court, the direction was issued in that case only to meet the ends of justice. Therefore, this Court is declined to issue such a direction.

15. Appeal succeeds and is allowed. The impugned award to the extent it directs the 3rd respondent to pay the compensation arrived at, in favour of the petitioners and thereby to indemnify the insured is set aside and liability is fixed on the 1st and 2nd respondents to pay the compensation in favour of the petitioners, jointly and M.A.C.A.No.54 of 2010 10 severally. 2nd respondent shall pay the compensation with interest and costs as fixed by the Tribunal, if not already paid, within a period of two months from the date on which a certified copy of this judgment is received.

Sd/-

MARY JOSEPH JUDGE MJL