Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND DAY OF JULY 2013 11TH ASHADHA, 1935 MACA.No. 858 of 2011 (B) ------------------------------------ [AGAINST THE AWARD IN O.P.(M.V).NO.1843/2003 DATED 11 11-2010 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR] ............... APPELLANT/3RD RESPONDENT IN THE O.P: ---------------------------------------------------------------- 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 & 7 IN O.P: --------------------------------------------------------------------------------------- 1. M.BHASKARAN , S/O.LATE SANKUNNI NAIR, POLIYEDATH HOUSE, CHEMBUTHARA, PATTIKKAD P.O, THRISSUR DISTRICT. *2. V.V.K.NAIR, 348/7, ANCHUMOORTHY, VADAKKANCHERY P.O, PALAKKAD DISTRICT. *R.2.IS DELETED FROM THE PARTY ARRAY VIDE ORDER DT. 18/02/13 IN I.A. 430/13 IN M.A.C.A. 858/11.
3. JAYAPRAKASHAN ,S/O.SUBRAN, KALARIKKAL HOUSE, AYOODU, PANANCHERY, THRISSUR DISTRICT.
4. RAJENDRAN, S/O.RAGHAVAN, MULLEPAT VEEDU, KIZHAKKUMCHERY, PALAKKAD. R1 BY ADV. SRI.P.V.CHANDRA MOHAN, R4 BY ADVS. SRI.V.K.SATHYANATHAN, SRI.P.A.AUGUSTIAN, SRI.M.A.BABY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. THOMAS P.JOSEPH, J.
========================= M.A.C.A.No.858 of 2011 ============================ Dated this the 2nd day of July, 2013 JUDGMENT
This appeal arises from the award dated 11.11.2010 in O.P.(MV) No. 1843 of 2003 of the Motor Accident Claims Tribunal, Thrissur.
2. The first respondent was travelling in a goods autorickshaw with his goods sharing the driver's seat . The Tribunal found that the accident occurred due to the negligence of the 3rd respondent, assessed compensation payable to the first respondent, found respondents 3 and 4 and the appellant liable rejecting the plea of the appellant that it has no obligation to cover liability of a person travelling in a goods vehicle sharing driver's seat and directed the appellant to deposit the amount. That award is under challenge at the instance of the appellant/insurer.
3. That, first respondent was travelling in the goods M.A.C.A.No.858 o”
2. autorickshaw along with his goods and he was sharing the driver's seat is admitted and found by the Tribunal.
4. The argument of the learned counsel for the appellant is that since the first respondent was sharing the driver's seat, the appellant/insurer is not liable. The learned counsel argues that it is only when a seat is provided for the owner of the goods also that the policy of insurance extends to such persons. It is argued that though under Sec.147(1) of the Act of the Motor Vehicles Act (for short, "the Act") it may be contended that the owner of the goods is required to be covered by the policy of insurance, the Act does not say anything as regards situations where no additional seat is provided in the goods vehicle and the owner of the goods is sharing the driver's seat. The learned counsel has placed reliance on the decision in United India Insurance Company Ltd. V. Suresh (2008(4)KLT 552.M.A.C.A.No.858 o”
3. 5. The learned counsel for the first respondent has argued that an owner of goods travelling in the goods vehicle with his goods is required to be covered by the policy of insurance in view of sub-clause (i) of clause (b) of Sec.147(1) of the Act. It is also argued that the question whether the owner of the goods is sharing the driver's seat or not is irrelevant. At any rate right of the appellant/insurer is only to recover the amount from the owner (4th respondent) after payment of compensation to the first respondent. The learned counsel has placed reliance on the decision in United India Insurance Company Ltd. V. Manoj (2011(1) KLT 502).
6. Sec.147(1) (b) (i) of the Act requires the policy to cover liability of owner of goods carried in the vehicle. In United India Insurance Company Ltd. V. Suresh (supra) it is held that a person who has hired a goods carriage would not come within the purview of Sec.147(1) M.A.C.A.No.858 o”
4. of the Act if the goods as such were not carried in the vehicle at the time of the accident. It is observed: "In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved." 7. The learned counsel for the appellant has given much emphasis to the above observation in the decision. It is argued that irrespective of the question whether Sec.147 (1) (b) (i) of the Act requires the owner of the goods travelling in the goods carriage with his goods also to be covered by the policy of insurance, in so far as there was no additional seat provided in the goods vehicle and the first respondent was sharing the driver's seat, the appellant is M.A.C.A.No.858 o”
5. not liable.
8. In United India Insurance Company Ltd. V. Manoj (supra) a Division Bench of this court after referring to the decision of the Supreme Court (supra) held that when the owner of the goods in a goods autorickshaw is travelling in that vehicle with his goods sharing the seat of the driver, that amounts to a violation of the policy condition (meaning thereby that the policy is required to cover such persons). In that case the insurer was found liable to pay compensation to the claimant (owner of the goods) but was allowed to recover the amount from the owner of the vehicle involved.
9. The decision of the Supreme Court referred supra is concerning a person who was travelling in the autorickshaw as a Coolie worker. It is in that situation that the Supreme Court made the observation extracted above. Those observations are not with respect to an owner of the goods M.A.C.A.No.858 o”
6. travelling in the goods vehicle with his goods. I must also notice that it is after referring to the decision of the Supreme Court (supra) that the Division Bench held in United India Insurance Company Ltd. V. Manoj that when the owner of the goods is travelling in the goods carriage along with his goods sharing the seat of the driver, the insurer is liable to pay compensation to him though it has a right of recovery of the amount from the owner of the vehicle. I am bound by that decision.
10. In the light of the statutory provision contained in Sec.147(1) (b) (i) of the Act and the decisions I have made above, it is clear that owner of the goods travelling in a goods carriage with his goods is required to be covered by the policy of insurance. The appellant cannot absolve itself of that liability.
11. Then the next question is whether there is violation of the policy condition due to the first (owner of M.A.C.A.No.858 o”
7. the goods) sharing the driver's seat The learned counsel for the appellant submits that the appellant has no contention that there is a violation of the policy condition and that its contention is only that since the first respondent was sharing the driver's seat, the policy of insurance is not required to cover him which contention I have rejected. In the light of that stand of the appellant, it is not necessary to go into the question whether there is any violation of the policy condition. No other point arises for a decision. The appeal fails and it is accordingly dismissed. Sd/- THOMAS P.JOSEPH, JUDGE //True copy// P.A. To Judge Smv