Kerala High Court
The Oriental Insurance Co.Ltd vs Asharaf on 8 August, 2012
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934
MACA.No. 129 of 2011 (B)
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OP(MV)No.672/2003 of Additional Motor Accidents Claims
Tribunal,Thrissur.
APPELLANT/3RD RESPONDENT IN THE OP:
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THE ORIENTAL INSURANCE CO.LTD.,
THRISSUR, REPRESENTED BY THE AUTHORIZED SIGNATORY
THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE
ERNAKULAM, METRO PALACE, ERNAKULAM NORTH
KOCHI-18.
BY ADV. SRI.A.R.GEORGE
RESPONDENTS/CLAIMANT & RESPONDENTS 1 & 2 IN THE OP:
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1. ASHARAF, S/O.SIDDIQUE,
RAYAKKARAKKAR VEETIL, ANJANGADY
VADANAPPILLY VILLAGE, THRISSUR DISTRICT-680 614.
2. P.UMMER, PULLANIYIL HOUSE,
PATTAMBI, PALAKKAD DISTRICT-679 303.
3. ASHARAF, S/O.BAPPU, VALIYAKATH VEETIL,
VADANAPPILLY VILLAGE, THRISSUR DISTRICT-680 614.
R3 BY ADV. SRI.M.SHAJU PURUSHOTHAMAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
08-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA.NO.129/2011
ORDER ON I.A.NO.178/2011 IN MACA.NO.129/2011
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DISMISSED
8/8/2011 Sd/-
HARUN-UL-RASHID, JUDGE.
True Copy
P.S. TO JUDGE
HARUN-UL-RASHID,J.
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M.A.C.A.NO.129 OF 2011
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DATED THIS THE 8TH DAY OF AUGUST, 2012
JUDGMENT
The Oriental Insurance Co. Ltd., Thrissur is the appellant. The appeal is directed against the award in O.P.(MV).No.672/2003 on the file of the Additional Motor Accidents Claims Tribunal, Thrissur. The Tribunal passed an award allowing the petitioner to recover a sum of `30,000/- with 7% interest. The parties are hereinafter referred to as the claimant and respondents as arrayed in the original petition.
2. The claimant was travelling in a minidoor vehicle after selling sugarcane in connection with the Olari Church Perunnal on 12/11/2001. The vehicle was driven by the 2nd respondent. The vehicle fell into a gutter and thereby it turned turtle and the claimant suffered severe injuries. The Tribunal held that the accident happened because of the negligence of the 2nd respondent. Ext.A5 is the copy of the wound certificate, which proved that the claimant was aged 32 years. At the time of accident, he was doing business. The Tribunal fixed his -2- M.A.C.A.NO.129/2011 monthly income at `2,500/-. The Tribunal held that the petitioner is entitled to compensation of `30,000/- . The appellant contended before the Tribunal that the claimant is a gratuitous passenger travelling in a goods autorickshaw and therefore, the appellant had no liability to indemnify the insured either in terms of the contract of insurance entered in the policy or as per Section 147 of the Motor Vehicles Act. It is pointed out that there is no proof to show that the claimant had hired goods autorickshaw for carrying sugarcane to the church in connection with the festival. Therefore, it is contended that the claimant was travelling in the said vehicle as gratuitous passenger. On the basis of the aforesaid facts, the appellant-insurance company contended that they had no liability to indemnify the insured or to compensate the claimant.
3. The definite case of the claimant is that he was returning home after attending his business in connection with the Olari Church Perunnal and that he was sitting near the driver seat. The evidence tendered by the claimant would indicate that he was travelling in the offending vehicle as a person accompanying the -3- M.A.C.A.NO.129/2011 goods. There is no evidence adduced by the Insurance Company to substantiate their contention that the claimant is a gratuitous passenger. The Tribunal held that the records show that the claimant was travelling after selling sugarcane, which would go to prove that he was not a gratuitous passenger. It is an admitted fact that the vehicle involved in the accident is covered by the valid policy. The Tribunal held that respondents 1 to 3 are jointly and severally liable and on the basis of the indemnity of contract, the 2nd respondent is liable to compensate the petitioner.
4. Learned counsel for the appellant contended that the Insurance Company is not liable to pay any amount to the claimant because in the goods vehicle 9 persons were travelling violating the policy conditions. It is pointed out that this was the main reason for the cause of the accident. Learned counsel also contended that Ext.B1policy was produced in support of the said contention. In the facts and circumstances of the case, this Court is inclined to give an opportunity to the appellant to substantiate their contention that they had no liability to indemnify the insured. -4- M.A.C.A.NO.129/2011
In the result, the appeal is allowed. The impugned award is set aside to the extent of deciding the question as to whether the Insurance Company has the liability to indemnify the insured or not. The question to be re-appreciated is only with regard to recovery of the amount of compensation from the insured. In all other respects, the findings of the Tribunal shall stand. The Insurance Company shall deposit the amount awarded deducting the amount already deposited within a period of two months from today. Parties are at liberty to adduce additional evidence, if so advised. No order as to costs.
Sd/-
HARUN-UL-RASHID, JUDGE.
kcv.