Kerala High Court
Oriental Insurance Company vs Annamma Varghese on 10 October, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 1560 OF 2021
AGAINST THE AWARD DATED 30.7.2020 IN O.P.(M.V.) NO.1657 OF 2016
OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/2ND RESPONDENT :
THE ORIENTAL INSURANCE COMPANY
KOTTAYAM - 686 001, REPRESENTED BY ITS REGIONAL
MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18.
BY ADVS.
GEORGE CHERIAN (SR.)
ALEXY AUGUSTINE
GEORGE A.CHERIAN
RESPONDENTS/PETITIONERS, 1ST RESPONDENT & ADDL 3RD RESPONDENT :
1 ANNAMMA VARGHESE
AGED 56 YEARS
W/O.VARGHESE, PALLIKUNNEL, POUTHENPURAM P.O.,
PAMPADY, KOTTAYAM - 686 502.
2 SHANUS VARGHESE
AGED 34 YEARS
D/O.VARGHESE, PALLIKUNNEL, POTHENPURAM P.O.,
PAMPADY, KOTTAYAM - 686 502.
3 SHIJO VARGHESE
AGED 28 YEARS
S/O.VARGHESE, PALLIKUNNEL, POTHENPURAM P.O.,
PAMPADY, KOTTAYAM - 686 502.
4 MARIYAMMA PAULOSE
AGED 80 YEARS
W/O.VARGHESE, PULLIKUNNEL, PUTHENPURAM P.O.,
PAMPADY, KOTTAYAM - 686 502.
5 BABEN THARAKAN
S/O.MATHAI THARAKAN, KIZHAKKETHALACKAL HOUSE,
VADAVATHOOR P.O., VIJAYAPURAM VILLAGE,
KOTTAYAM - 686 010.
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M.A.C.A. Nos.3351 of 2020 and
connected cases 2
6 THE KERALA STATE
REP. BY DISTRICT COLLECTOR, KOTTAYAM - 686 502.
BY ADVS.
P.M.JOSHI
T.R.HARIKUMAR
ADITHYA RAJEEV
SRI.DHEERAJ, GP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
06.09.2024 ALONG WITH MACA NOS.1584/2021 AND CONNECTED CASES,
THE COURT ON 10.10.2024 DELIVERED THE FOLLOWING:
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M.A.C.A. Nos.3351 of 2020 and
connected cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 1584 OF 2021
AGAINST THE AWARD DATED 30.7.2020 IN O.P.(M.V.) NO.1953 OF 2015
OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/2ND RESPONDENT :
THE ORIENTAL INSURANCE COMPANY LIMITED
KOTTAYAM - 686 001, REPRESENTED BY ITS REGIONAL
MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18.
BY ADVS.
GEORGE A.CHERIAN
ALEXY AUGUSTINE
RESPONDENTS/PETITIONERS, 1ST RESPONDENT & ADDL.3RD RESPODENT :
1 SUNITHAMOL
AGED 41 YEARS
W/O.BINOY @ SUNNY, PULIMOOTTILPARAMBIL,
PARAKADANKUNNU BHAGOM, VAKATHANAM P.O.,
VAKATHANAM VILLAGE, CHANGANACHERRY, PIN - 686 538.
2 NEVIN STEPHEN BINOY(MINOR)
AGED 14 YEARS
D.O.B.29/11/2004, S/O.BINOY, REP. BY HIS MOTHER
SUNITHAMOL AS NEXT FRIEND, PULIMOOTTILPARAMBIL,
PARAKADANKUNNU BHAGOM, VAKATHANAM P.O., VAKATHANAM
VILLAGE, CHANGANACHERRY, PIN - 686 538.
3 ABIN VARGHESE BINOY(MINOR)
AGED 10 YEARS
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M.A.C.A. Nos.3351 of 2020 and
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D.O.B.21/05/2008, S/O.BINOY, REP. BY HIS MOTHER
SUNITHAMOL AS NEXT FRIEND, PULIMOOTTILPARAMBIL,
PARAKADANKUNNU BHAGOM, VAKATHANAM P.O., VAKATHANAM
VILLAGE, CHANGANACHERRY, PIN - 686 538.
4 BABEN THARAKAN
S/O.MATHAI THARAKAN, KIZHAKKETHALACKAL HOUSE,
VADAVATHOOR P.O., VIJAYAPURAM VILLAGE,
KOTTAYAM - 686 010.
5 THE KERALA STATE
REP. BY DISTRICT COLLECTOR, KOTTAYAM - 686 01.
BY ADVS.
P.M.JOSHI
T.R.HARIKUMAR
ADITHYA RAJEEV
SIJI K.PAUL
SRI. DHEERAJ, GP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
06.09.2024, ALONG WITH MACA NO.1560/2021 AND CONNECTED CASES,
THE COURT ON 10.10.2024 DAY DELIVERED THE FOLLOWING:
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M.A.C.A. Nos.3351 of 2020 and
connected cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 1097 OF 2021
AGAINST THE AWARD DATED 30.07.2020 IN O.P.(M.V.) NO.1953 OF 2015
OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANTS/PETITIONERS :
1 SUNITHAMOL
AGED 41 YEARS
W/O. BINOY @ SUNNY, PULIMOTTILPARAMBIL,
PARAKADANKUNNU BHAGOM, VAKATHANAM P.O,
VAKATHANAM VILLAGE, CHANGANACHERRY.
2 NEVIIN STEPHEN BINOY,
AGED 16 YEARS
(MINOR), D.O.B 29.11.2004 , S/O. BINOY , REPRESENTED BY
HIS MOTHER SUNITHAMOL, AS NEXT FRIEND , AGED 41 YEARS,
W/O. BINOY @ SUNNY, PULIMOTTILPARAMBIL, PARAKADANKUNNU
BHAGOM, VAKATHANAM P.O, VAKATHANAM VILLAGE,
CHANGANACHERRY.
3 ABIN VARGHESE BINOY,
AGED 12 YEARS
(MINOR), D.O.B 21.05.2008, S/O. BINOY REPRESENTED BY
HIS MOTHER SUNITHAMOL, AS NEXT FRIEND, AGED 41 YEARS,
W/O. BINOY @ SUNNY, PULIMOTTILPARAMBIL, PARAKADANKUNNU
BHAGOM, VAKATHANAM P.O, VAKATHANAM VILLAGE,
CHANGANACHERRY.
BY ADV P.M.JOSHI
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M.A.C.A. Nos.3351 of 2020 and
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RESPONDENTS/RESPONDENTS:
1 BABEN THARAKAN
S/O. MATHAI THARAKAN, KIZHAKKETHALACKAL HOUSE,
VADAVATHOOR P.O, VIJAYAPURAM VILLAGE, KOTTAYAM-686 010
2 THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO. LTD, KOTTAYAM 686 001.
3 THE KERALA STATE,
REP. BY DISTRICT COLLECTOR, KOTTAYAM , PIN-686 001
BY ADVS.
SRI. GEORGE CHERIAN (SR.)
SRI. ALEXY AUGUSTINE
SRI. GEORGE A.CHERIAN
SRI.DHEERAJ, GP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
01.08.2024, ALONG WITH MACA NO.1560/2021 AND CONNECTED CASES,
THE COURT 10.10.2024 DELIVERED THE FOLLOWING:
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M.A.C.A. Nos.3351 of 2020 and
connected cases 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 1186 OF 2021
AGAINST THE AWARD DATED 30.7.2020 IN O.P.(M.V.) NO.1657 OF 2016
OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANTS/PETITIONERS :
1 ANNAMMA VARGHESE
AGED 52 YEARS
W/O.VARGHESE, PALLIKUNNEL, POTHENPURAM P.O.,
PAMPADY, KOTTAYAM-686 502.
2 SHANUS VARGHESE,
AGED 30 YEARS
D/O.VARGHESE, PALLIKUNNEL, POTHENPURAM P.O.,
PAMPADY, KOTTAYAM-686 502.
3 SHIJO VARGHESE,
AGED 24 YEARS
S/O.VARGHESE, PALLIKUNNEL, POTHENPURAM P.O.,
PAMPADY, KOTTAYAM-686 502.
4 MARIYAMMA PAULOSE,
AGED 76 YEARS
W/O.VARGHESE, PALLIKUNNEL, POTHENPURAM P.O.,
PAMPADY, KOTTAYAM-686 502.
BY ADVS.
P.M.JOSHI
SMT.SIJI K.PAUL
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M.A.C.A. Nos.3351 of 2020 and
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RESPONDENTS/RESPONDENTS:
1 BABEN THARAKAN
S/O.MATHAI THARAKAN, KIZHAKKETHALACKAL HOUSE,
VADAVATHOOR P.O., VIJAYAPURAM VILLAGE,
KOTTYAM-686 010.
2 THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO.LTD., KOTTAYAM, PIN-686 001.
3 THE KERALA STATE,
REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM,
KOTTAYAM, PIN-686 001.
SMT. KS SANTHI,SC
SRI.DHEERAJ, GP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
1.8.2024 ALONG WITH MACA NO.1560/2021 AND CONNECTED CASES, THE
COURT ON 10.10.2024 DELIVERED THE FOLLOWING:
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M.A.C.A. Nos.3351 of 2020 and
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 3351 OF 2020
AGAINST THE AWARD DATED 30.7.2020 IN O.P.(M.V.) NO.1953 OF 2015
OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM
APPELLANT/1ST RESPONDENT :
BABEN THARAKAN
S/O MATHAI THARAKAN, KIZHAKKETHALACKAL HOUSE,
VADAVATHOOR P.O.VIJAYAPURAM VILLAGE,
KOTTAYAM, PIN-686 010.
BY ADVS.
T.R.HARIKUMAR
SRI.ADITHYA RAJEEV
RESPONDENTS/PETITIONERS & RESPONDENTS 2 AND 3 :
1 SUNITHAMOL
AGED 43 YEARS
W/O BINOY @ SUNNY, PULIMOOTTILPARAMBIL,
PARAKADANKUNNU BHAGOM, VAKATHANAM P.O.VAKATHANAM
VILLAGE, CHANGANACHERRY, KOTTAYAM DISTRICT,
PIN-685 101.
2 NEVIN STEPHEN BINOY,
AGED 16 YEARS
(MINOR), D.O B 29.11.2004, S/O BINOY REPRESENTED BY HIS
MOTHER SUNITHAMOL AS NEXT FRIEND, PULIMOOTTILPARAMBIL,
PARAKADANKUNNU BHAGOM, VAKATHANAM P.O.VAKATHANAM
VILLAGE, CHANGANACHERRY, KOTTAYAM DISTRICT,
PIN-685 101.
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M.A.C.A. Nos.3351 of 2020 and
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3 ABIN VARGHESE BINOY,
AGED 12 YEARS
(MINOR) D.O.B 21.5.2008, S/O BINOY REPRESENTED BY HIS
MOTHER SUNITHAMOL AS NEXT FRIEND PULIMOOTTILPARAMBIL,
PARAKADANKUNNU BHAGOM, VAKATHANAM P.O.VAKATHANAM
VILLAGE, CHANGANACHERRY,KOTTAYAM DISTRICT PIN-686 101.
4 THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO LTD,
KOTTAYAM, PIN-686 001.
5 THE KERALA STATE,
REPRESENTED BY DISTRICT COLLECTOR,
KOTTAYAM, PIN-686 001.
BY ADVS.
SHRI.P.M.JOSHI
SRI.GEORGE CHERIAN (SR.)
GOVERNMENT PLEADER SRI. DHEERAJ
SMT.SIJI K.PAUL
SRI.ALEXY AUGUSTINE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
06.09.2024 ALONG WITH MACA NO.1560/2021 AND CONNECTED CASES, THE
COURT ON 10.10.2024 DELIVERED THE FOLLOWING:
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M.A.C.A. Nos.3351 of 2020 and
connected cases 11
EASWARAN S. , J.
-------------------------
M.A.C.A No.3351 of 2020 and
M.A.C.A. Nos.1097,1186,1560 & 1584 of 2021
-----------------------------------
Dated this the 10th day of October 2024
JUDGMENT
The order of this Court shall dispose of the above captioned five
appeals. M.A.C.A Nos.1560 & 1584 of 2021 are preferred by the
insurance company, M.A.C.A. Nos.3351 of 2020 is filed by the owner
of the vehicle and M.A.C.A. Nos.1097 and 1186 of 2021 are filed by
the claimants for enhancement of the compensation.
2. An intriguing question regarding the liability of the insurance
company to compensate the legal heirs/claimants of the deceased on
the ground that the policy does not cover the liability of the Insurance
Company over the gratuitous passenger in a private vehicle has arisen
for consideration of this Court. Since the insurance company is
denying its liability, M.A.C.A. Nos.1560 and 1584 of 2021 will be dealt
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M.A.C.A. Nos.3351 of 2020 and
with at the first. Depending upon the findings of this Court on these
two appeals, the fate of M.A.C.A. No.3351 of 2020 will be decided. The
owner claims that in the peculiar facts and circumstances, the State of
Kerala is also vicariously liable to compensate the claimants of the
deceased. On the other hand, the claimants are before this Court in
M.A.C.A.Nos.1097 and 1186 of 2021 for enhancement of the
compensation and the facts in both these appeals are common.
3. A reading of the claim petitions discloses the facts leading to
the two separate claims being lodged before the Motor Accidents
Claims Tribunal, Kottayam, which is quite desolating. On 6.9.2015, the
vehicle in question driven by one Mr.Baben Tharaken hit a scooter
ridden by one Mr.Varghese and he suffered injuries. Sri.Binoy who
came to the spot offered to take the injured in the vehicle belonging to
Mr.Baben Tharakan to the hospital, though, Sri.Baben Tharakan
alleges that it was the police officials who pressured him to take the
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M.A.C.A. Nos.3351 of 2020 and
injured namely, Sri.Varghese, to the hospital in his vehicle. However,
for the purpose of deciding the contentions of the appellant-insurance
company, the same may be irrelevant. As stated above, Sri.Binoy and
Sri.Baben Tharakan took Mr.Varghese in the jeep and were rushing to
the Medical College Hospital, Kottayam. While the vehicle was plying
through Kottayam-Kumali road, the jeep dashed behind a lorry bearing
registration No.HR-55/M-6638, thereby, both Mr.Binoy and
Mr.Varghese suffered serious injuries and succumbed to the injuries.
The legal heirs of Mr.Binoy, i.e., his wife and two minor children,
lodged O.P.(M.V.) No.1953 of 2015 and the wife, mother and children
of Sri.Varghese filed O.P.(M.V.) No.1657 of 2016 before the Motor
Accidents Claims Tribunal, Kottyam. The insurance company entered
appearance. In its usual vigor, the insurance company raised its
defense on the ground that the policy in question is only an Act Only
Policy and, therefore, it is not bound to honor the claim in these claim
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M.A.C.A. Nos.3351 of 2020 and
petitions. The tribunal on a comparative assessment of the facts and
also the terms and conditions of the policy, came to the conclusion
that neither Mr.Binoy nor Mr.Varghese could not be construed as
gratuitous passengers and thereby entitling the insurance company to
disown its liability to indemnify the owner. Accordingly, both the claim
petitions were allowed. It is aggrieved by these findings that the
insurance company has come up with M.A.C.A Nos.1560 & 1584 of
2021.
4. Heard Sri. George Cherian, the learned Senior Counsel
assisted by Smt.Latha Susan Cherian, the learned counsel appearing
for the appellant-Insurance Company. Sri. T.R. Harikumar, the learned
counsel appearing for the owner of the vehicle and the appellant in
M.A.C.A. No.3351 of 2020 and Sri. P.M. Joshi, the learned counsel
appearing for the appellants/claimants in M.A.C.A. Nos.1097 and 1186
of 2021.
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M.A.C.A. Nos.3351 of 2020 and
5. Sri. George Cherian, the learned Senior Counsel appearing for
the insurance company commenced the arguments by contending that
the liability of the insurance company is exonerated, especially since
the policy in question is only an 'Act Only Policy'. It does not cover the
gratuitous passenger traveling in the vehicle in question. The accident
was not caused due to the rash and negligent driving of the owner but
due to the negligence of the driver of the offending lorry. According to
the learned counsel, in the absence of the owner and the insurance
company of the vehicle on which the vehicle dashed into, the tribunal
ought not to have entertained the claim. In short, according to the
learned Senior Counsel, the applications before the tribunal were bad
for non-joinder of parties.
6. On the other hand, Sri.T.R Harikumar, the learned counsel
appearing on behalf of the owner, would contend that the owner has
filed the appeal for fastening of the liability on the State of Kerala to
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M.A.C.A. Nos.3351 of 2020 and
compensate for the accident that was caused. According to him,
Sri.Binoy was forced to carry Sri.Varghese in his vehicle due to the
pressure exerted by the police officials, and thereby resulting in the
accident and death of these two persons.
7. Sri. P.M.Joshi, the learned counsel appearing for the claimants
would contend that in the peculiar facts and circumstances of the case,
the plea raised by the insurance company should not be accepted by
the Court. It is the specific case of Sri.P.M.Joshi, the learned counsel
appearing on behalf of the claimants, that Sri.Binoy had extended the
courtesy to carry Mr.Varghese for treatment to the hospital. The owner
of the vehicle was obliged to help Sri.Varghese for rendering treatment
and, unfortunately, while rushing to the hospital, the unforeseen
accident happened, which resulted in the death of both Mr.Binoy and
Mr.Varghese, and thus, they cannot be construed as gratuitous
passengers in the vehicle. The learned counsel further contended that
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M.A.C.A. Nos.3351 of 2020 and
though the terms and conditions of the policy cover the third party
risk, the deceased cannot be construed as gratuitous passengers in
the vehicle. If such a strict interpretation is given, the same will
necessarily cause hardship to the claimants. The claimants though
legally entitled for compensation will be left with no alternative to
recover the amount from the owner alone. It is further contended that
since the provisions of Section 166 of the Motor Vehicles Act is a
beneficial legislation, the same will have to be construed liberally in
order to achieve the social objectives. Therefore, it is prayed that the
appeals filed by the insurance company be dismissed.
8. I have considered the rival submissions raised across the Bar
and have perused the records as well as the award passed by the
Motor Accidents Claims Tribunal.
9. No doubt, the facts presented before this Court are certainly
desolating. This is compounded further by the stand taken by the
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M.A.C.A. Nos.3351 of 2020 and
insurance company that it is not liable to compensate or indemnify the
owner for the loss caused to the claimants. Primarily, the reason being
that the policy in question is only a 'liability only policy'.
10. The law in respect of the liability of an insurance company, if
the policy is liability only policy, needs no elaboration. In United
India Insurance Co. Ltd. , Shimla v. Tilak Singh and Others vs
Tilak Singh [(2006) 4 SCC 404], the Hon'ble Supreme Court
considered the issue and held as under :
"21. In our view, although the observations made in
Asha Rani case (11) were in connection with carrying
passengers in a goods vehicle, the same would apply
with equal force to gratuitous passengers in any other
vehicle also. Thus, we must uphold the contention of
the appellant Insurance Company that it owed no
liability towards the injuries suffered by the deceased
Rajinder Singh who was a pillion rider, as the insurance
policy was a statutory policy, and hence it did not cover
the risk of death of or bodily injury to a gratuitous
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M.A.C.A. Nos.3351 of 2020 and
passenger."
11. It is the specific contention of the appellant-Insurance
Company that based on the above principles, they are not bound to
indemnify the owner since Mr.Binoy as well as Mr.Varghese were
gratuitous passengers. If the facts as stated above are true, then the
discussion needs no further elaboration. But, the pointed question
before this Court is whether, in the peculiar facts and circumstances,
Mr.Varghese and Mr.Binoy would be considered as gratuitous
passengers in the vehicle. The Insurance Company will succeed in
their endeavor only if this Court finds that the victims in the accident
were gratuitous passengers.
12. The term 'gratuitous passenger' is not defined anywhere
under the provisions of the Motor Vehicles Act, 1988. Black's law
dictionary 4th Edition defines the term GRATUITOUS GUEST - In
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M.A.C.A. Nos.3351 of 2020 and
automobile law: A person riding at invitation of owner or
authorized agent without payment of a consideration or fare.
The question before this Court would be as to whether Mr.Binoy or Mr.
Varghese could fit into the term of 'gratuitous passenger' or 'gratuitous
guest', so as to take them out of the purview of the contract of
insurance. This Court cannot ignore the fact that Mr.Varghese met with
an accident which was caused by the vehicle owned by Mr.Baben
Tharaken. The said fact is proved by the Exhibit A7 final report . If
that be so, in terms of the provisions contained under Section 134(a)
and (b) of the Motor Vehicles Act, 1988 the owner was bound to
render assistance to the injured . At this point of time, whether the
owner of the vehicle was reluctant to take the victim to the hospital or
not is not clear. Be that as it may, it is indisputable that Mr.Binoy came
forward and offered his willingness to help Mr.Varghese. Necessarily,
Sri.Binoy had to depend on a vehicle for the purpose of taking
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M.A.C.A. Nos.3351 of 2020 and
Sri. Varghese to the hospital. Though different versions are given by
the owner as well as the investigating authority in Crime No.1039 of
2015, as regards what exactly prompted Mr.Baben Tharaken to take
Sri.Binoy and Sri.Varghese in his vehicle, the same may not require
adjudication at the hands of this Court. However, the indisputable fact
is, due to the accident caused by vehicle KL-52/6622, Sri.Varghese
was lying on the spot when Sri.Binoy came forward to help him and
volunteered to take him to the hospital. It was while traveling to the
hospital, the unfortunate accident took place and Sri.Binoy and
Sri.Varghese sustained injuries and subsequently, succumbed to the
injuries.
13. The court has to decide from the above sequence of events
as to whether Sri.Varghese or Sri.Binoy could be termed as Gratuitous
passengers in the vehicle or could be considered as a third party. It is
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M.A.C.A. Nos.3351 of 2020 and
pertinent to mention that Insurance Company can avoid the liability
only if it is shown that the deceased were traveling in the vehicle as
gratuitous passengers. Be that as it may, what would be the position
of the insurer qua the third party in a policy like this in question. Can
the Insurance Company which owes a corporate social responsibility
towards the society simply wash off their hands by contending that the
policy in question is an "Act Only Policy" and hence no liability. The
facts and events narrated are no doubt disturbing. But the decisions of
the courts cannot be based on empathy. No doubt equity follows law.
Undoubtedly, claimants have equity. But is the law on their side? The
answer to this question would depend on the construction of the
contract of insurance. Under normal circumstances, had Sri.Binoy and
Sri.Varghese travelled in the vehicle, this Court would not have
endeavored to venture into the facts so closely. However, the facts
presented before this Court are so compelling enough for this Court to
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M.A.C.A. Nos.3351 of 2020 and
have a relook on the issue presented.
14. As stated above, the term 'gratuitous passenger' is not
defined under the Statute. Therefore, the definition of 'gratuitous
passenger' either under the common law principle or based on the
usage has to be applied. On going through the definition of the word
'gratuitous passenger' coined by judicial dictionaries as well as by
various precedents, this Court is not persuaded to hold that Sri.Binoy
and Sri.Varghese were 'gratuitous passengers' in the vehicle driven by
Sri.Baben Tharakan since Sri. Binoy was accompanying Sri. Varghese,
who met with the accident and was being taken to the hospital . In
holding so this Court would be doing injustice to the cause especially
in the light of the provisions contained under Section 134(a) and (b) of
the Motor Vehicles Act, 1988.
15. Having concluded that the deceased were not gratuitous
passengers and therefore not covered by the policy in question,
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M.A.C.A. Nos.3351 of 2020 and
necessarily, this Court will have to uphold the findings of the tribunal
by which, the liability was fastened upon the shoulders of the
insurance company. No doubt, the tribunal has undertaken an
enduring exercise by analysing the facts threadbare in order to find
out whether Sri.Binoy and Sri.Varghese could be construed as
"Gratuitous Passengers". In doing so, the tribunal reached the
conclusion that Mr.Varghese had to be treated as a third party but no
specific finding was rendered by the tribunal in respect of Sri.Binoy.
However, liberty was granted to the Insurance company to pay and
recover from the owner.
16. In order to ascertain whether the above findings could be
sustained or not, it is necessary for this Court to advert to the terms
of the policy. The policy in question reveals that the
appellant/insurance company has collected premium for third party
insurance and for personal cover of the driver and owner. The schedule
to the policy reads as under:
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M.A.C.A. Nos.3351 of 2020 and
SCHEDULE OF PREMIUM
A. OWN DAMAGE B. LIABILITY
Basic T.P Cover : 4931.00
Basic T.P Total : 4931.00
Add: PA for owner GR 36A : 100.00
Add;LL- Paid Driver,Conductor
Cleaner- IMT- 28 : 50.00
TP Total : 5081.00
Total Premium : 5081.00
Stamp Duty : 0.50
Add: Service Tax : 711.00
Total Amount : 5792.00
A further reading of the terms and conditions of the policy, especially
the clause "Liability to third Parties" shows that the Insurance
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M.A.C.A. Nos.3351 of 2020 and
Company had undertaken the liability as follows:
"1. Subject to the limits of the liability laid down in the
schedule hereto, the company will indemnify the Insured in
the event of an accident caused by or arising out of the use
of the Motor Vehicle caused by or arising out of the use of
Motor Vehicle anywhere in India against all sums including
claimants costs and expenses which the insured shall
become legally liable to pay in respect of
i. death or bodily injury to any person so far as it is
necessary to meet the requirements of Motor Vehicles Act
ii. damage to property other than property belonging to the
insured or held in trust or in the custody or control of the
insured upto the limit specified in the Schedule."
17. A combined reading of the aforesaid clause with the
schedule of the policy leads to an inevitable conclusion that the policy
in question covers death or injury caused to the third party while using
the motor vehicle. That be so, an incidental question may crop up,
Who is a third party? Section 145(i) of the Motor Vehicles Act, 1988
defines "third party" to include the Government, the driver and any
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M.A.C.A. Nos.3351 of 2020 and
other co-worker on a transport vehicle. Apart from that there is no
other indication in the Statute defining the word 'third party'. Still
further Section 146 of the Motor Vehicles Act 1988 mandates that a
vehicle shall not be used in public unless there is an insurance policy
complying with the requirements of the statute. So what does the
term "third party" exactly mean? A Division Bench of the Karnataka
High Court in New India Assurance Co. Ltd. vs. Rajendra Singh
[2000 KHC 3556] had occasion to consider this question. Para 10 of
the decision reads under:
"10. Therefore, the law laid down by the Supreme
Court declares that the virtue of omission of cl. (ii) of the
proviso to S.95(1)(b) of the Old Act from corresponding
S.147 of the New Act, the insurer of a vehicle covered by
"Act Only' policy i.e., statutory policy, would be liable to
indemnify the insured owner against any liability to pay
compensation incurred by him for death of or bodily injury
to a gratuitous passenger travelling in the offending vehicle,
be it a private car, a private jeep or goods vehicle or even a
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M.A.C.A. Nos.3351 of 2020 and
two wheeler. This is our answer to I part of the question
under examination.
10(a). Furthermore, it becomes manifest that by virtue of
the aforestated change in position of the law expanding the
statutory liability of the insurer under the New Act it
necessarily follows that all victims of a motor accident other
than the parties to the contract of insurance are third
parties in relation thereto. This finding answers the II part
of the said question."
18. In Vasuki Vs Shanthi [2016 SCC Online Ker 9640] a
Division Bench of this Court held that in a case where the policy covers
only owner and the driver of the vehicle, and accident occurs while the
vehicle is driven by a third person, the Insurance Company is not
liable. However on appeal, the Hon'ble Apex Court reversed the said
decision and held that the Insurance company is liable (see Vasuki Vs
Shanthi (2021 )16 SCC 730 ). The aforementioned decision would
show that in respect of a private car when the owner alone is covered
under the policy, the insurance company was made liable if the
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M.A.C.A. Nos.3351 of 2020 and
accident happened while the vehicle was driven by a person other than
the owner. This Court is sanguine of the fact that accepting the
argument of the Insurance company will lead to an incongruous
situation, where, in an accident, both the driver/owner and the
occupants of the vehicle had died or sustained serious injuries then
definitely Insurance Company would be made liable only to the owner
but not to the occupants. Be that as it may, once it is concluded that
the deceased Mr.Binoy and Mr.Varghese were not gratuitous
passengers then necessarily the Insurance Company cannot escape
the liability.
19. Before parting with the case, this Court needs to address the
contentions of the appellant in M.A.C.A No.3351 of 2020. The
appellant/owner contends that he was forced to take Mr.Binoy in the
vehicle to accompany Mr.Varghese to the hospital by the police
authorities and hence seek a direction to the State of Kerala to
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M.A.C.A. Nos.3351 of 2020 and
compensate the claimants of the victims. This contention has been
taken especially since the Insurance Company has been given a right
of recovery against the owner. Since this Court has concluded that
both Mr.Binoy and Mr.Varghese has to be treated as third parties, there
is no necessity for this Court to deal with the issue since the interest
of justice will suffice if the direction to the Insurance Company to
recover the amount from the owner of the vehicle is vacated by this
Court.
20. On an overall appreciation of the facts and also the law
presented before this Court and the tribunal, this Court is not
persuaded to accept the argument of Sri.George Cherian, the learned
Senior Counsel appearing on behalf of the insurance company, to
interfere with the findings rendered by the tribunal and to hold that
the insurance company is not liable to indemnify the owner.
Therefore, this Court is of the considered view that the findings
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M.A.C.A. Nos.3351 of 2020 and
rendered by the tribunal do not call for any interference at the hands
of this Court in exercise of the appellate powers. Resultantly, M.A.C.A.
Nos.1560 and 1584 of 2021 are dismissed.
21. In view of the finding in M.A.C.A. Nos.1560 and 1584 of
2021, this Court is of the considered view that M.A.C.A. No.3351 of
2020 is required to be partly allowed and I do so. The order of the
tribunal granting liberty to the Insurance Company to recover the
compensation from the owner is set aside.
22. Having decided the question of law raised before this Court
as above, this Court now proceeds to determine whether the claimants
are entitled to get enhancement in the compensation.
M.A.C.A. No.1186 of 2021 [arising out of O.P.(M.V.) No.1657 of 2016]
23. The claimants are the appellants. This Court having found
that the insurance company is liable to pay the compensation, the
question to be considered is whether the appellants are entitled for
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M.A.C.A. Nos.3351 of 2020 and
any enhancement in the compensation. The tribunal had taken the
notional income of the deceased at Rs.10,000/-. However, it is to be
noted that the deceased was a private Surveyor. Hence, it was not
prudent on the part of the tribunal to have fixed the notional income
as now done. The appellants claimed that the deceased was earning
an amount of Rs.20,000/- per month. Even going by the notification
issued by the Kerala Public Service Commission, the salary scale of a
land surveyor is Rs.23,500- 47,650/-. However, in the absence of any
evidence, it will not be safe for this Court to fix the income of the
deceased in the scale applicable to a Government servant. However,
pertinently the Hon'ble Supreme Court in Rajani Vs Oriental
Insurance Company Ltd. [2022 KHC online 7149], fixed the
notional income of a carpenter at Rs.15,000/-. Considering the
irrefutable fact that a surveyor has to be placed on a higher pedestal
than that of a carpenter, considering these facts, this Court finds it
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M.A.C.A. Nos.3351 of 2020 and
appropriate to fix the notional income at Rs.17,500/-. Accordingly, the
appellants/claimants are entitled for compensation under the head
"loss of dependency" as follows:
(17,500x12x7x3/4)= 11,02,500- 6,30,000=4,72,500/-
24. Accordingly, the appellants are entitled to get an additional
compensation of Rs.4,72,500/- (Rupees Four Lakh Seventy Two
Thousand and Five Hundred only). The said amount shall carry
interest at the rate of 8% per annum from 30.11.2016 till the date of
payment together with proportionate costs. The insurance company
shall deposit the enhanced compensation together with interest and
proportionate costs within a period of one month from the date of
receipt of a copy of this judgment. The claimants shall furnish the
details of the bank account to the insurance company for transfer of
the amount.
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M.A.C.A. Nos.3351 of 2020 and
M.A.C.A. No.1097 of 2021 [arising out of O.P.(M.V.) No.1953 of
2015]
25. The deceased was working as a Mason. The tribunal fixed
the notional income at Rs.10,000/- and granted compensation as
given below:
SL. Head of claim Amount Amount Basis-vital
No. claimed (in awarded (in details in a
Rupees) Rupees) nut shell
1 Transportation 3000 3000
expenses
2 Damage to clothing 1000 1000
3 Medical Expenses 50000 Nil
4 Expense for 10000 Nil
bystander
5 Pain and suffering 100000 15000
6 Funeral expense Nil 15,000
7 Loss of estate 500000 15,000
8 Loss of consortium 500000 120000 40000x3
9 Loss of love and 500000 Nil
affection
10 Loss of dependency 3900000 1679999.4 (10000+40%-
1/3x12x15)
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M.A.C.A. Nos.3351 of 2020 and
Total Limited to Rs.65,64,000 Rs.1848999.4 Rs.18,49,000/
Rs.40,00,000 Rounded to - along with
Rs.1849000/- interest at the
rate of 8%
p.a from
23.12.2015.
26. The claimants contended that the deceased was a mason and
was earning a monthly income of Rs.20,000/-. However there is no
evidence to establish the same. Hence, the tribunal took Rs.10,000/-
as monthly income. However, it is pertinent to note that in Rajani
(supra) the Supreme Court fixed Rs.15,000/- as income for a skilled
worker. Though a person working as a Mason cannot be treated on par
with a skilled worker, certainly a certain amount of skill is required to
do the job of masoning. Even going by the minimum wages
notification, GO(P) No.22/2023/LBR dated 10-2-2023, issued by State
of Kerala, the minimum wage of a mason is fixed at Rs.620/- per day
and calculating for 26 days it comes to Rs.16,120/-. However, it will
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M.A.C.A. Nos.3351 of 2020 and
not be safe to fix the said amount especially since the revision tool will
be placed only in the year 2023. However, considering the fact that a
job of masoning could be treated as a semi-skilled job, this Court finds
it reasonable to fix the notional income at Rs.13,500/-. The claimants
are entitled to add 40% towards future prospects. The notional income
after adding future prospects comes to Rs.18,900/-. Since there are
three dependents, 1/3rd is to be deducted towards personal expenses
and thus the compensation under the head "loss of dependency" has
to be re-worked as follows:
(18,900x12x15x2/3=22,68,000-16,79,999.4
(rounded to 16,80,000) = Rs.5,88,000/-
27. Accordingly, the appellants are entitled to get an additional
compensation of Rs.5,88,000/- (Rupees Five Lakh Eighty Eight
Thousand only) towards loss of dependency. The aforesaid amount
shall carry interest at the rate of 8% per annum from 23.12.2015 till
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M.A.C.A. Nos.3351 of 2020 and
the date of payment together with proportionate costs. The insurance
company shall deposit the enhanced compensation together with
interest and proportionate cost within a period of one month from the
date of receipt of a copy of this judgment. The claimants shall furnish
the details of the bank account to the insurance company for transfer
of the amount. The insurance company shall pay the enhanced
compensation in both M.A.C.A. Nos.1097 and 1186 of 2021 in terms of
the proportion fixed by the learned tribunal.
In the result, M.A.C.A. Nos.1560 and 1584 of 2021 filed by the
Insurance Company are dismissed; M.A.C.A No.3351 of 2020 filed by
the owner and M.A.C.A Nos.1186 and 1097 of 2021 filed by the
claimants are allowed as above.
Sd/-
EASWARAN S.
JUDGE
NS
