Kerala High Court

The New India Assurance Co.Ltd vs The New India Assurance Co.Ltd on 18 March, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

    THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                       MACA.No.1309 OF 2008

   AGAINST THE AWARD IN OPMV 577/2004 DATED 17-01-2008 OF MOTOR
                ACCIDENT CLAIMS TRIBUNAL VADAKARA


APPELLANT/3RD RESPONDENT:

             THE NEW INDIA ASSURANCE CO.LTD.
             REGIONAL TOWERS, KANDAMKULATHY TOWERS,
             M.G.ROAD, ERNAKULAM,
             REP. BY, ITS DULY AUTHORISED OFFICER

             BY ADV. SRI.VPK.PANICKER

RESPONDENTS/RESPONDENTS 1 & 2 & PETITIONER:

      1      NOUSHAD
             S/O AMMAD, PUTHIYOTTIL HOUSE,
             P.O.ORKKATTERI, VATAKARA,
             PIN-673 501

      2      PARAKKAL ABDULLLA
             S/O.ABOOBACKER
             KASTHURI HOUSE, PANDIKASALA,
             VALAPPIL BEACH ROAD,
             VATAKARA, PIN-673 103.

      3      ASHRAF,
             S/O.LATE HYDER
             PALLIKKALAKATH VALAPPIL HOUSE,
             VATAKARA -1.

             R1 BY ADV. SRI.B.KRISHNAN
             R1 BY ADV. SRI.P.M.HABEEB
             R1 BY ADV. SRI.R.PARTHASARATHY

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
10-03-2021, THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:
 MACA.No.1309 OF 2008

                                         2


                                   JUDGMENT

Dated this the 18th day of March 2021

This is an appeal filed by the 3rd respondent in O.P.

(MV)No.577/2004 on the files of Motor Accident Claims

Tribunal, Vadakara. Claim petition was filed under Section 166

of the Motor Vehicle Acts. (Hereinafter the parties are

mentioned in accordance to their rank before the Tribunal)

2. Short facts are like this: on 12.11.2003, when the

petitioner was travelling in a goods Autorickshaw bearing

registration No.KL-18/2583, which was driven by the 2 nd

respondent in rash and negligent manner and when the

Autorickshaw reached at Ayanikkad Mosque it overturned and

the petitioner sustained injury. The petitioner was travelling in

the Autorickshaw with a load of fish belonging to him at the

time of the accident. Immediately he was taken to Nandhi

Hospital and later to Medical College, Kozhikode and treated

there till 06.12.2003 and subsequently treated at that hospital

as outpatient for a considerable long time. According to the

petitioner the accident occurred due the negligence of the 2 nd

respondent. The 1st respondent is the owner of the vehicle. MACA.No.1309 OF 2008

The petitioner claimed an amount of Rs.3,00,000/- as

compensation.

3. The 1St respondent has not filed any written

statement. The 2nd respondent filed written statement

contending that the 1st respondent was the R.C. owner of the

vehicle and 2nd respondent was the driver of the Autorickshaw,

and there was no negligence on his part. Petitioner is a fish

merchant and he was transporting fish belonging to him in the

vehicle at the time of the accident and accident occurred due

to the fact that the wheel of the Autorickshaw fell in a dig on

the road.

4. The 3rd respondent has also filed written statement.

The main contention of the 3rd respondent is that, even though

the goods Autorickshaw was insured with the 3 rd respondent

at the time of accident, there was no negligence on the part of

the 2nd respondent. According to the 3rd respondent, accident

occurred due to the fact that the wheel of the vehicle fell into

the dig in the Tar road and it got capsized. The 3 rd respondent

also contended that petitioner has to prove that he was

travelling in the vehicle as the owner of the Goods MACA.No.1309 OF 2008

transporting in the vehicle. In fact the contention is that the

petitioner was a gratuitous passenger in a goods vehicle and

he is not covered by the policy and therefore the 3 rd

respondent is not liable to give compensation.

5. To substantiate the case Exts. A1 to A8 were

marked on the side of the petitioner. Exts.B1 and B2 are the

Exhibits marked on the side of the respondents. Ext.X1 is the

disability certificate. The petitioner himself was examined as

PW1. After going through the evidence and documents the

Tribunal found that the petitioner is entitled a compensation of

Rs.2,31,996/- with interest at the rate of 6% per annum from

the date of the petition till realization.

6. Aggrieved by the above award the appellant/3rd

respondent - insurance company filed the above appeal.

7. Heard.

8. Only point raised by the appellant/3rd respondent -

insurance company is that the petitioner was travelling in a

goods Autorickshaw and as per the policy, he is not covered

and therefore the insurance company may be exonerated from

paying the compensation. Originally this Court disposed the MACA.No.1309 OF 2008

appeal directing the insurance company to pay the

compensation with liberty to the company to the recover the

same from the owner and driver of the goods Autorickshaw.

Subsequently, a review petition was filed and the judgment

was reviewed.

9. Now also the appellant/3rd respondent raised a

contention that the 3rd respondent/injured was only a

gratuitous passenger and he was travelling in a goods

Autorickshaw and therefore he is not covered by Ext.B2 policy.

10. The 1St respondent - owner of the vehicle argued

the case in detail. The counsel submitted that as per the

Registration Certificate which is produced as Ext. A5. The

seating capacity of his vehicle bearing Registration No. KL-

18/2585 is 'two'. The counsel submitted that there is a vital

change in Section 147 (1) (b) (i) of the Motor Vehicles Act in

1994. As per Act 54 of 1994 the amended Section 147(1) is

extracted hereunder:-

"147.Requirement of policies and limits of liability -

(1) In order to comply with the requirements of this Chapter, a policy insurance must be a policy which -

(a) is issued by a person who is an authorised insurer;

and MACA.No.1309 OF 2008

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a transport vehicle, except gratuitous passenger of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place.

Explanation - For the removal of doubts, it is hereby clarified that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place, notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place."

11. Reading of Section 147(1)(b)(i), it is clear that the

liability is covered to bodily injury to any person including

owner of the goods or his authorised representative carried in

the vehicle. This point is considered by the Apex Court in New

India Assurance Company v. Asha Rani.[2003 (1) KLT 165] . The

relevant portion is extracted hereunder:-

"10. In Satpal's case (supra) the Court assumed that the provisions of S.95(1) of Motor Vehicles Act, 1939 are identical with S.147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this Court came to the conclusion that the insurer would be liable to pay MACA.No.1309 OF 2008

compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amendment Act of 1994 is examined, particularly S.46 of Act 6 of 1994 by which expression 'injury to any person' in the original Act stood substituted by the expression 'injury to any person including owner of the goods or his authorised representative carried in the vehicle' the conclusion is irresistible that prior to the aforesaid amendment Act of 1994, even if widest interpretation is given to the expression 'to any person' it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of Clause.46 also states that it seeks to amend S.147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the insurance policy. It is no doubt true that sometimes the Legislature amends the law by way of amplification and clarification of and inherent position which is there in the statute, but a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to earlier, it is difficult for us to construe that the expression 'including owner of the goods or his authorised representative carried in the vehicle' which was added to the pre existed expression 'injury to any person' is either clarificatory or amplification of the pre existing statute. On the other hand it clearly demonstrates that the Legislature wanted to bring within the sweep of S.147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury.

The judgment of this Court in Satpal's case, therefore must be held to have not been correctly decided and the impugned judgment of the tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that meets with an accident and the owner of goods or his representative dies or MACA.No.1309 OF 2008

suffers any bodily injury. S.B. Sinha, J. (Agreeing)"

Similarly, this Court also considered a similar case in

United India Insurance Company v. P.O. Pappu and others [2011

KHC 2373]. The relevant portion is extracted hereunder:

"4. Now the next question that may arise for consideration is whether an autorickshaw driver can carry another person in the autorickshaw. Most probably, this argument is raised on the basis of the decision in 2008 (4) KLT 552 (SC) United India Insurance Company Ltd., v. Suresh. In that case the Hon'ble Supreme Court held that the driver of the autorickshaw cannot share his seat with anybody else and therefore, no other person other than the driver can travel in the cabin. But so far as this case is concerned materials are made available before me to show that two persons are permitted to be carried in the vehicle. As per the registration certificate the seating capacity including the driver is shown as two in numbers. So one person other than the driver is entitled to travel in the cabin. When it is so, the question of sharing the driver's seat does not arise. Even as per the provision of the insurance policy, coverage is therefore one driver plus one employee. I am referring to this only for the reason that the insurance company also knew the fact that the autorickshaw can carry two persons. I am conscious of the fact that the coverage of two employees will not take in the claimant. But by virtue of the statutory fiction under S.147 of the Motor Vehicles Act the owner of the goods or the representative of the owner of the goods is covered by the policy without additional premium. Since the claimant had travelled in the autorickshaw which can take two persons and that as he had travelled as the owner accompanying the goods by virtue of the dictum laid down in Asharani's case as well as the statutory fiction under S.147(1) of the Motor Vehicles Act, the said person is covered under the Act. Therefore, the insurance company cannot get exonerated from the liability and they are liable to pay the amount. Therefore, from these discussions, I find nothing to interfere with the decision rendered by the Tribunal.

Therefore, the appeal fails and the same is dismissed."[Emphasis supplied] MACA.No.1309 OF 2008

12. Admitted case of the petitioner in this case is that,

he was the owner of the goods in the goods vehicle.

According to him, he was taking his fish in the goods

Autorickshaw and he travelled in the goods Autorickshaw.

Admittedly, as per the R.C. Particulars the seating capacity of

the vehicle is two. In the light of Section 147(1)(b)(i), I think

the petitioner is also covered as per the policy, because there

is statutory cover.

In such circumstances, the contention raised by the

appellant/3rd respondent will not sustain. No other contention

is raised by the appellant/3rd respondent. Hence, the appeal