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
2
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
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
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
`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.
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.
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
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.
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
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
