Kerala High Court
The Oriental Insurance Co Ltd vs P K Sukumaran on 23 March, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 29TH DAY OF MARCH 2017/8TH CHAITHRA, 1939
MACA.No. 1138 of 2013 ()
-------------------------
AGAINST THE AWARD IN OPMV 2364/2004 of MOTOR ACCIDENTS CLAIMS
TRIBUNAL,THRISSUR DATED 23-03-2013
APPELLANT(S)/3RD RESPONDENT :
--------------------------------------
THE ORIENTAL INSURANCE CO LTD
THRISSUR, REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.
BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
RESPONDENTS/CLAIMANT/RESPONDENTS 1 & 2:
--------------------------------------
1. P K SUKUMARAN
S/O. KUTTAN, PLAKKAL HOUSE, THALORE P.O.,
THRISSUR DISTRICT-680 001.
2. K.K.HARIDASAN
KALPARA HOUSE, AVINISSERY P.O.,
THRISSUR DISTRICT-680 001.
3. DOMINIC
S/O. CHACKO, PADINJAREKATTU HOUSE,
AVINISSERY P.O., THRISSUR DISTRICT-680 001.
R1 BY ADV. SRI.P.SANTHOSH (PODUVAL)
R1 BY ADV. SMT.R.RAJITHA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 29-03-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
acd
P.D. RAJAN, J.
------------------------------------------- M.A.C.A.No.1138 of 2013
----------------------------------------------
Dated this the 29th day of March, 2017 JUDGMENT CR This appeal is preferred against the award in O.P.(MV) No.2364/2004 of Motor Accident Claims Tribunal, Thrissur (for short 'tribunal') by the Insurance Company. The first respondent in this appeal sustained injury in a motor accident on 17.10.2003 at 12.35 p.m. while he was travelling in a goods autorickshaw and the tribunal awarded a sum of 80,100/- with interest and costs and the appellant was directed to satisfy the award.
2. The first respondent's case in the trial court was that on 17.10.2003 at 12.35 p.m., he hired goods autorickshaw KL- 8/R 5996 for purchasing fire wood from Ollur market. The driver of the goods vehicle driven the vehicle in a rash and negligent manner, as a result the vehicle capsized, he fell M.A.C.A.No.1138/2013 2 down and sustained serious injuries. The driver and owner of the vehicle were set ex parte in the lower court. The appellant admitted the insurance of the vehicle, but denied the liability since there was violation of policy conditions. The tribunal examined PW1 to PW3 and marked documentary evidence Exts.A1 to A9. Appellant's documents were marked as Exts.B1 and B2.
3. Learned counsel appearing for the appellant contended that first respondent was a gratuitous passenger in a goods autorikshaw. The owner of the vehicle got insurance coverage in respect of the goods vehicle for driver and owner of the goods alone. There is no insurance coverage to the passenger sharing the seat of the driver even before carrying the goods in the vehicle. From the facts of the case, first respondent did not cease to be gratuitous passenger though he claimed as the owner of the goods. The insured had paid premium for driver and the owner of the goods alone. Since there was no statutory liability and contractual liability, appellant is not entitled to M.A.C.A.No.1138/2013 3 pay compensation. Appellant relied on the decision of apex Court reported in New India Assurance V. Asha Rani ( 2003 (2) SCC 223).
4. The question of law that arises in this appeal is whether the Insurance Company is liable to pay compensation for the injuries sustained to the first respondent who was travelling in a goods autorickshaw ? The requirement of policy and limits of liability are specifically mentioned u/s.147 of the M.V. Act 1988. The controversy in the instant case is with regard to the liability of the insurance company of a passenger in a goods vehicle, when there was no goods carried in that vehicle. Appellant contended that the owner of the goods or authorised agent carried in the goods vehicle is covered u/s.147 of the M.V. Act 1988. The policy of insurance must be a policy which insured the persons specified in the policy. It also covers the liability of any person for the death of or bodily injury to any person including the owner of the goods or his authorised representative carried in the vehicle or any M.A.C.A.No.1138/2013 4 damages to property of a third party caused by arising out of the use of the vehicle in a public place. If that be the position, the challenge in this appeal is whether a person travelling in a goods vehicle for collecting the fire wood from a shop is covered under the policy. On a reading of S.147 of the M.V.Act 1988, it is clear that legislature made a provision u/s.147 to cover liability of the owner of the goods or his authorised representative being carried in a goods vehicle.
5. Before considering the rival submission, it would be appropriate to notice S.147 of the Motor vehicles Act 1988. Section 147 (1) of the M.V. Act reads as follows:
"147.Requirements of policies and limits of liability.-
(1) In order to comply with the requirements of this Chapter, a policy of insurance 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 vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the M.A.C.A.No.1138/2013 5 use of the 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 police 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) if it is a public service vehicle engaged as a 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 declared 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.
(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 defective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and M.A.C.A.No.1138/2013 6 containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."
6. In view of the above statutory provision, the learned counsel appearing for the injured submitted that the owner of the goods or his authorised agent travelling in a goods vehicle sharing the seat with driver before loading goods is also covered under the policy. By virtue of the statutory fiction under Section 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. In this case claimant had travelled in the autorickshaw for purchasing firewoods, but by virtue of M.A.C.A.No.1138/2013 7 Section 147 (1) of the Motor Vehicles Act, he is not covered under the Act. He was proceeding in a goods autorickshaw for purchasing the firewoods and he cannot be called as the owner of the goods. In normal course, a person is expected to hire a goods vehicle for purchasing goods, but before carrying goods in that vehicle, he cannot travel to the place of purchase in that goods autorickshaw as the owner of goods. Such a person cannot be called as the owner of the goods or representative of the owner of the goods even before purchase of goods. In Ext.A1 statement, the injured stated that he showed the signal to stop the vehicle, then driver stopped the vehicle and thereafter, he hired the vehicle for taking fire wood. This new contention was taken six years after filing the claim petition. For that he amended the claim petition after six years and stated that he travelled in a good vehicle for purchase of fire wood. A close scrutiny of the evidence shows that the injured was travelling in the goods vehicle and he cannot be called as the owner of the goods or representative of the M.A.C.A.No.1138/2013 8 owner of the good and he is a gratuitous passenger. Even then the insurance company cannot avoid the liability in view of the position expressed in National Insurance Co.Ltd v.Baljit Kaur & Ors. (2004)2 SCC 1. Apex Court considered the decision in Asha rani's case in National Insurance Company V. Saji Paul (2013(2) SCC 41).
7. Apex Court in Manuara Khatun & Others v. Rajesh Kr. Singh & Others [CDJ 2017 SC 179], [Civil Appeal No.3047/2017, 3065/2017 (Arising out of SLP (c) No.5805/2013, 791/2013] held as follows:
"15. The aforesaid question, in our opinion, remains no more res integra. As we notice, it was subject matter of several decisions of this Court rendered by three Judge Bench and two Judge Bench in past, viz. National Insurance Co.Ltd v. Baljit Kaur & Ors. 2004(1) R.C.R (Civil) 722: (2004) 2 SCC 1, National Insurance Co.Ltd v.
Challa Upendra Rao & Ors. (2004) 8 SCC 517, National Insurance Co. Ltd. v. Kaushalaya Devi & Ors. 2008 (4) R.C.R. (Civil) 902: (2008) 8 SCC 246, National Insurance Co. Ltd. v. Roshan Lal, [Order dated 19.1.2007 in SLP ) No.5699 of 2006] and National Insurance Co. Ltd. v. Parvathneni & Anr., 2009(4) R.C.R. (Civil) 269: (2009) 8 SCC 785.
16. This question also fell for consideration recently in Manager, National Insurance Company Limited . Saju P. Paul & Anr. (supra), wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was M.A.C.A.No.1138/2013 9 travelling in offending vehicle as "gratuitous passenger"
and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of th e Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".
17. xxx xxx xxx xxx xxx "20. xxx xxx xxx xxx
26. The pendency of consideration of the above question by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 (National Insurance Co. Ltd v. Saju P.Paul SLP ) No.20127 of 2011 and the said amount has been invested in a fixed deposit account. Having regard to there peculiar facts of the case in hand, we are satisfied that the claimant (Respondent
1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao (supra)." Therefore, the insurance company has liability to pay compensation to the claimant victim and reimburse the M.A.C.A.No.1138/2013 10 amount from the owner of the goods autorickshaw as directed in the above dictum.
This appeal is disposed of as above.
P.D. RAJAN, JUDGE.
acd