Kerala High Court

The New India Assurance Company Ltd vs Sakuntala Roy on 16 January, 2025

M.A.C.A. No. 1200/2020 & 399 of 2021: 1 :

                                                                 2025:KER:3163

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT

                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN

          THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946

                             MACA NO. 1200 OF 2020

          AGAINST THE AWARD DATED 23.12.2019 IN OP(MV) NO.668 OF 2016 OF

MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM


APPELLANT/3RD RESPONDENT:

              THE NEW INDIA ASSURANCE COMPANY LTD.
              KOLLAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL
              OFFICE, M.G.ROAD, ERNAKULAM.


              BY ADVS.
              GEORGE CHERIAN (SR.)
              SMT.K.S.SANTHI
              SMT.LATHA SUSAN CHERIAN




RESPONDENTS/PETITIONERS & RESPONDENTS 1 & 2:

      1       SAKUNTALA ROY, AGED 36 YEARS
              W/O. AMAL ROY, DARIPAONI, PARMEKHILIGANI, DARIPATTAINI,
              HAIDIBARI, COOCH BEHAR P.O., WEST BENGAL, PIN-736 101.

      2       SUBRATA ROY, AGED 25 YEARS,
              S/O. AMAL ROY, DARIPAONI, PARMEKHILIGANI, DARIPATTAINI,
              HAIDIBARI, COOCH BEHAR P.O., WEST BENGAL, PIN-736 101.

      3       KALYANI ROY, AGED 21 YEARS
              D/O. AMAL ROY, DARIPAONI, PARMEKHILIGANI, DARIPATTAINI,
              HAIDIBARI, COOCH BEHAR P.O., WEST BENGAL, PIN-736 101.

      4       PAYEL ROY
              AGED 19 YEARS
              D/O. AMAL ROY, DARIPAONI, PARMEKHILIGANI, DARIPATTAINI,
              HAIDIBARI, COOCH BEHAR P.O., WEST BENGA, PIN-736 101.

      5       RADHA KRISHNA PILLAI,
              S/O. RAGHAVAN NAIR, MEERABHAVANAM, PADINJATTOM MURI,
              SOORANAD NORTH VILLAGE, SOORANAD NORTH P.O., PIN-690 561.
 M.A.C.A. No. 1200/2020 & 399 of 2021: 2 :

                                                            2025:KER:3163


      6      THANKACHAN, S/O. YOHANNAN, POOKKATTU VEEDU, SOORANAD
             VADAKKU, KUNNATHOOR (P.O), PIN-690 540.


             BY ADVS.
             R5 BY SRI.BIMAL K.NATH
             R6 BY SRI.A.SHAFEEK (KAYAMKULAM)
             SRI.SREEVALSAN.V
             SRI.D.SREENATH
             SMT.DIVYA C BALAN



       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

14.01.2025, ALONG WITH M.A.C.A. NO. 399 OF 2021, THE COURT ON 16.01.2025

DELIVERED THE FOLLOWING:
 M.A.C.A. No. 1200/2020 & 399 of 2021: 3 :

                                                                 2025:KER:3163

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE JOHNSON JOHN

          THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946

                              MACA NO. 399 OF 2021

      AGAINST THE AWARD DATED 23.12.2019 IN OP(MV) NO.668 OF 2016 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM

APPELLANT/2ND RESPONDENT:

             THANKACHAN, AGED 60 YEARS
             S/O YOHANNAN, RESIDING AT POOKKATTU VEEDU, SOORANADU
             VADAKKU, KUNNATHOOR, KOLLAM DISTRICT

             BY ADV A.SHAFEEK (KAYAMKULAM)

RESPONDENTS/CLAIMANT & RESPONDENT NOS. 1 & 3:

      1      SAKUNTALA ROY, AGED 37 YEARS,
             W/O AMAL ROY, DARIPAONI, PARMEKHILIGANI, DARIPATTAINI,
             HAIDIBARI, COOCH BEHAR, WEST BENGAL-763 610.
      2      SUBRATA ROY, AGED 26 YEARS
             S/O AMAL ROY, DARIPAONI, PARMEKHILIGANI, DARIPATTAINI,
             HAIDIBARI, COOCH BEHAR, WEST BENGAL-763 6101.
      3      KALYANI ROY, AGED 22 YEARS
             D/O AMAL ROY, DARIPAONI, PARMEKHILIGANI, DARIPATTAINI,
             HAIDIBARI, COOCH BEHAR, WEST BENGAL-763 6101

      4      PAYEL ROY, AGED 20 YEARS
             D/O AMAL ROY, DARIPAONI, PARMEKHILIGANI, DARIPATTAINI,
             HAIDIBARI, COOCH BEHAR, WEST BENGAL-763 6101

      5      RADHA KRISHNA PILLAI,
             S/O RAGHAVAN NAIR, MEERA BHAVANAM, PADINJATTOM MURI,
             SOORANADU NORTH VILLAGE, SOORANADU NORTH P.O.-690 561.

      6      THE NEW INDIA ASSURANCE CO LTD,
             KOLLAM - 691 001, REP BY ITS DIVISIONAL MANAGER .

             BY ADV GEORGE A.CHERIAN

       THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

      14.01.2025, ALONG WITH M.A.C.A.1200/2020, THE COURT ON 16.01.2025

      DELIVERED THE FOLLOWING:
 M.A.C.A. No. 1200/2020 & 399 of 2021: 4 :

                                                                 2025:KER:3163

                            JOHNSON JOHN, J.
           ---------------------------------------------------------
               M.A.C.A Nos. 1200 of 2020 & 399 of 2021
            --------------------------------------------------------
               Dated this the 16th day of January, 2025.

                                  JUDGMENT

The 2nd respondent-- owner of the vehicle and the 3 rd respondent

insurance company in O.P.(MV) No. 668 of 2016 on the file of the Motor

Accident Claims Tribunal, Kollam filed these appeals challenging the

order of the Tribunal directing the 3rd respondent insurance company to

pay the compensation to the claim petitioners and thereafter, to recover

the same from the 2nd respondent owner of the vehicle.

2. The claim petitioners are the legal heirs of the deceased Amal

Roy, who died in a motor vehicle accident occurred on 18.12.2015.

According to the claim petitioners, the deceased was travelling in the

mini lorry driven by the 1st respondent in a rash and negligent manner

and he lost his control over the vehicle and hit against another lorry

parked on the side of the road and thereby, the deceased sustained

grievous injuries and subsequently succumbed to his injuries.

3. Before the Tribunal, respondents 1 and 2 were ex parte. From

the side of the petitioners, Exhibits A1 to A9 were marked and from the

side of the 3rd respondent, Exhibit B1 was marked. M.A.C.A. No. 1200/2020 & 399 of 2021: 5 :

2025:KER:3163

4. After trial and hearing both sides, the Tribunal found that the

accident occurred because of the negligence on the part of the 1 st

respondent and awarded a total compensation of Rs.24,16,672/- to the

claim petitioners. The Tribunal also recorded a finding that even if the

deceased is considered as a gratuitous passenger, the insurer cannot be

exonerated from liability and therefore, directed the insurance company

to pay the compensation to the petitioners and thereafter, to recover the

same from the owner of the vehicle.

5. Heard both sides and perused the records.

6. The learned counsel for the appellant insurance company

argued that the deceased was a gratuitous passenger in the goods

vehicle and he is not covered by the 'act only policy' and therefore, the

Tribunal ought to have exonerated the appellant insurance company.

7. The learned counsel for the owner of the vehicle, the appellant

in the connected appeal, argued that the finding of the Tribunal that the

offending vehicle was not having a valid fitness certificate as on the date

of the accident, is erroneous and the same is without considering Exhibit M.A.C.A. No. 1200/2020 & 399 of 2021: 6 :

2025:KER:3163

A6 report of the Motor Vehicle Inspector. It is also argued that the

deceased was not a gratuitous passenger and that he was the

representative of the owner of the goods transported in the vehicle and

that after 1994 amendment, the insurance company is liable to pay

compensation to the owner of the goods or his representative travelling

in a goods vehicle.

8. The learned counsel for the insurance company pointed out

that there is no averment in the claim petition that the deceased was the

representative of the owner of the goods transported in the vehicle. In

column No. 28 of the claim petition, it is only stated that the deceased

was travelling in the mini lorry as a labourer and the claim petitioners

have no case that the deceased was the representative of the owner of

the goods transported in the vehicle. It is also pertinent to note that

before the Tribunal, the owner of the vehicle remained ex parte and no

written statement was filed. In that circumstance, the argument raised

now on behalf of the owner of the vehicle that the deceased was his

representative and he was accompanying his goods transported in the M.A.C.A. No. 1200/2020 & 399 of 2021: 7 :

2025:KER:3163

vehicle cannot be accepted at this stage, in the absence of any pleadings

and evidence in this regard.

9. The Tribunal relied on the decision of the Honourable Supreme

Court in Manuara Khatun & others vs Rajesh Kr. Singh & others

[2017 KHC 6151 =2017 ACJ 1031] for directing the insurance company

to pay the award amount to the claim petitioners, and thereafter to

reimburse the same from the owner of the vehicle. In the absence of any

pleadings or evidence to prove that the deceased was the owner of the

goods or repetitiveness of the owner of the goods, it can only be found

that he was a gratuitous passenger in the goods vehicle at the time of

the accident.

10. A perusal of Exhibit B1 shows that the same is only a statutory

policy and no additional premium was collected to cover the risk of a

gratuitous passenger.

11. Sub-Sections 1 and 2 of Section 147 of the Motor Vehicles

Act, 1998 reads thus:

147. Requirement of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance M.A.C.A. No. 1200/2020 & 399 of 2021: 8 :

2025:KER:3163

must be a policy which -

(a) is issued by a person who is an authorised insurer, and

(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 passengers of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place.

Provided that a policy shall not be required -

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee

(a) engaged in driving the vehicle, or (b)

(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or

(c) if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

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, M.A.C.A. No. 1200/2020 & 399 of 2021: 9 :

2025:KER:3163

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.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely: -

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier."

12. Sub-Section 1 of Section 149 of Motor vehicles Act, 1988

reads as follows:

"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. - (1) If, after a certificate of insurance has been issued under sub-section (3) of S.147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of S.147 (being a liability covered by the terms of the policy) [or under the provisions of S.163A] is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together M.A.C.A. No. 1200/2020 & 399 of 2021: 10 :

2025:KER:3163

with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."

13. The decision of this Court in New India Assurance Co. Ltd.

v. Daisy Paul and another [2021 2 KHC 449] shows that the direction

for pay and recovery ordered by the Honourable Supreme Court in in

National Insurance Co Ltd. v. Saju P. Paul and another [2013 KHC

4013] and Manuara Khatun (supra) are in exercise of the plenary

powers under Article 142 of the Constitution of India and taking into

consideration the peculiar facts and circumstances of the said cases and

therefore, the said decisions are not applicable to this case.

14. In United India Insurance Co. Ltd. v. Rijawana Jamshed

Mulla and others [2021 ACJ 197] , this court after finding that the

deceased was a gratuitous passenger, directed the insurance company

to pay the compensation and thereafter, to recover the amount from the

owner of the vehicle, relying on the decision of the Honourable Supreme

Court in Manuara Khatun (supra). The decision of the Honourable

Supreme Court in National Insurance Co. Ltd. v. Parvathneni [2009

8 SCC 785] shows that the Honourable Supreme Court issued the

direction to pay the compensation amount and thereafter, to recover the

same from the owner of the vehicle in exercise of the jurisdiction under M.A.C.A. No. 1200/2020 & 399 of 2021: 11 :

2025:KER:3163

Article 142 of the Constitution of India and in the said case, the

Honourable Supreme Court also referred the matter to a larger Bench to

decide whether such a direction can be given under Article 142 of the

Constitution of India. The direction for pay and recovery passed by the

Honourable Supreme Court in exercise of the jurisdiction under Article

142 of the Constitution of India cannot be followed as a precedent to

direct the insurance company to make payment when the insurance

company has no liability to pay and therefore, in view of the above legal

position, I find that the direction to the appellant in the impugned award

to pay compensation to the claim petitioner and thereafter to recover

the same from the owner of the vehicle, is erroneous and liable to be set

aside.