IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 MACA.No. 2122 of 2007(A) ------------------------------------- [O.P(MV).NO.1202/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, OTTAPALAM] .................... APPELLANTS/RESPONDENT NO.3: -------------------------------------------------- M/S. UNITED INDIA INSURANCE CO. LTD., OTTAPALAM BRANCH, P.O. OTTAPPALAM, PALAKKAD DISTRICT., NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD,ERNAKULAM, KOCHI-11. BY ADV. SRI.S.MAMMU. RESPONDENTS/PETITIONER AND RESPONDENTS NO.1 AND 2: ------------------------------------------------------------------------------------------ 1. NANDAKUMAR V.P., S/O. LATE RAMAN, AGED 26 YEARS, VATTAPARAMBIL HOUSE, P.O. KARATTUKURUSSY, PALAKKAD DISTRICT. 2. JALEEL, S/O. SAIDALAVI, AGED 23 YEARS, PADINHARETHIL HOUSE, ARAVAKKAD, P.O. AMBALAPPARA, PALAKKAD DISTRICT. 3. SAIDALAVI, S/O. UNNIANKUTTY, AGED 70 YEARS, PADINHARETHIL HOUSE, ARAVAKKAD, P.O. AMBALAPPARA, PALAKKAD DISTRICT. R2 & R3 BY ADV. SRI.SANTHEEP ANKARATH. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2010, ALONG WITH M.A.C.A NO. 2123 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 2122 & 2123 of 2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 15th day of November, 2010 JUDGMENT Barkath Ali, J. In both these appeals appellant is M/s. United India Insurance Company Ltd. who was the 3rd respondent in O.P. (MV) Nos.1202/2004 and 1215/2005 on the file of the Motor Accidents Claims Tribunal, Ottapalam. In this appeal the appellant challenges the judgment and award of the Tribunal dated July 10, 2007 awarding a compensation to the claimants in the Original Petitions for the loss caused to them on account of the injuries sustained by them in a motor accident. 2. The accident happened on December 26, 2003 at about 8.30 a.m. at Kakathodu, while the claimants were travelling in a pickup van bearing registration No.KL.09/J 2529 from Cherupalchery to Ambalappara. Due to the rash and negligent driving of the pickup van by 1st respondent in the O.P. it capsized on the side of the road. The claimant in MACA 2122/2007 & con. case. 2 O.P. (MV) No.1202 of 2004 claimed a compensation of Rs.25,000/- and claimant in O.P. (MV) No.1215 of 2005 claimed a compensation of Rs.20,000/-, alleging negligence against the 1st respondent, driver of the offending pickup van. 3. Respondents 1 and 2, the owner and driver of the offending pickup van, filed separate written statements admitting the accident and further contended that the accident happened while transporting the goods in the vehicle and that the claimants have to be considered as passengers accompanying the goods. The 3rd respondent in the O.P., insurer of the offending pickup van, filed a written statement admitting the policy and further contended that the claimants are gratuitous passengers in the vehicle whose risk is not covered by the policy issued in respect of the offending vehicle. 4. Both these petitions were jointly tried along with O.P.(MV) No.332 of 2004 filed by another injured person and a common award was passed. 5. PWs.1 to 3 were examined and Exts.A1 to A24 MACA 2122/2007 & con. case. 3 were marked on the side of the claimants. RW1 was examined and Exts.B1 and B2 were marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the 1st respondent, driver of the offending pickup van, and awarded a compensation of Rs.15,100/- and Rs.9,100/- respectively in O.P.(MV) Nos.1202/2004 and 1215/2005 with interest at 7% p.a. from the date of petition till realization and cost. The Tribunal found that the claimants were gratuitous passengers in the goods vehicle whose risk was not covered by an Act only policy and therefore, the Insurance Company was not liable to indemnify respondents 1 and 2. However, the Tribunal directed the 3rd respondent Insurance Company to pay the amount to the claimants and to recover the said amount from respondents 1 and 2 . The 3rd respondent Insurance Company has filed these appeals challenging the said finding of the Tribunal. 6. Heard learned counsel for the appellant (Insurance Company) and learned counsel for respondents 2 and 3 (driver and owner of the offending pickup van). MACA 2122/2007 & con. case. 4 7. Ext.B1 is the copy of the policy issued by the appellant Insurance Company, in respect of the offending pickup van. No additional premium is seen collected from the owner to cover the risk of the passengers in the goods vehicle. The claimants would say that they are representative of the owner of the goods and their risk is covered by the insurance policy issued. There were 11 travellers in the goods vehicle, as evidenced by Ext.B2, copy of the police charge. There is no evidence to show that who is the owner of the goods carried in the pickup van. Therefore, the claimants cannot be treated as the representatives of the goods transported. That being so, the Insurance Company is not liable to indemnify respondents 1 and 2 in the O.P., driver and owner of the vehicle. Hence, the direction of the Tribunal to pay the amount to the claimants and recover the same from respondents 1 and 2 in the O.P. cannot be sustained. The entire compensation has to be paid by respondents 1 and 2 in the O.P. That being so, both the appeals are liable to be allowed. 8. In the result, both the appeals are allowed. The MACA 2122/2007 & con. case. 5 direction of the Tribunal directing the appellant Insurance Company to pay the amount to the claimants and to recover the same from respondents 1 and 2 in the O.P. is set aside. The claimants can realize the compensation amount awarded from respondents 1 and 2 in the O.P. The award of the Tribunal is modified to the above extent. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.