IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 4TH JUNE 2008 / 14TH JYAISHTA 1930 MACA.No. 113 of 2003(D) ----------------------------------- O.P(MV).NO.316/1993 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM. .................... APPELLANT/ 3RD RESPONDENT IN M.V.O.P: --------------------------------------------------------------- THE ORIENTAL INSURANCE CO. LTD., KOTTAYAM, REPRESENTED BY THE ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIMS CELL, REGIONAL OFFICE, NORTH RAILWAY STATION ROAD, ERNAKULAM, COCHIN-18. BY ADV. SRI.JACOB MURICKAN. RESPONDENTS/ PETITIONER AND RESPONDENTS 1 AND 2: -------------------------------------------------------------------------------------- 1. A.A.MUSTHAFA, ATTATHARA HOUSE, VELOOR P.O., KOTTAYAM. 2. N.THAMPY, S/O. NARAYANAN,PULIKKAMATTATHIL HOUSE, VELOOR P.O., KOTTAYAM. 3. KESAVAN, KADALIKKATTU MALIYIL, KUMARAKOM P.O., KOTTAYAM. BY ADV. SRI.P.RAVINDRA BABU - R1 & R2, ADV. SRI.SURIN GEORGE IPE - R3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO. 113/2003-D: ORDER ON I.A. NO. 385/2003 IN M.A.C.A. NO. 113/2003 DISMISSED 04/06/2008. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// prv. M.N.KRISHNAN, J ===================== MACA No.113 OF 2003 ===================== Dated this the 4th day of June 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)No.316 of 1993. The Tribunal awarded a total compensation of Rs.17,800/- and directed respondents 1 and 3 to pay the same and further held that as the insurance company has to deposit the amount. It is against that decision the present appeal is filed. 2. The point argued in this case is regarding the liability of the insurance company to cover a passenger in a goods autorickshaw. The accident took place on account of a collision between the autorickshaw and the motor bike. The claimant's definite case is that the accident took place on account of the autorickshaw driver. It was so found by the Tribunal as well. Then the question is regarding the liability. There can be two types of passengers in a goods vehicle:(1) accompanying the goods as the owner or the representative of the owner of the goods and (2) a gratuitous passenger. The legal position is made clear in the light of the pronouncement of the Apex Court in New India Assurance Company Ltd. v. Asha Rani(2003(1) MACA 113/2003 -:2:- KLT 165(SC) and it has been clearly held that Section 95 of the Motor Vehicles Act 1939 and Section 147 of the Motor Vehicles Act, 1988 are in pari materia and prior to the amendment, i.e. before 14.11.1994 it does not cover the risk or liability of the owner of the goods or the representative of the owner of the goods. The legislative intent had been clarified by the amendment in the year 1994 whereby the statutory requirement to ensure the owner of the goods of the vehicle or his representative became imperative. Therefore, till that time, i.e. prior to 14.11.1994 there is no coverage. So even if the person was accompanying the goods as an owner or the representative of the owner, insurance company is not liable to indemnify for the solitary reason that the accident had taken place in the year 1992. So far as gratuitous passengers are concerned, the position is well settled that even prior to or subsequent to the amendment they are not covered and the insurance company cannot be directed to pay the amount. When such is the legal position, the finding entered into by the Tribunal is erroneous which is liable to be corrected and the entire liability has to be affixed on the owner-cum-driver of the autorickshaw. Therefore, MACA is allowed and the insurance company is exonerated from the liability and the claimant is entitled to realise the award from the owner-cum-driver of the autorickshaw. The amount, i.e. deposited MACA 113/2003 -:3:- by the insurance company shall be returned to them. M.N.KRISHNAN, JUDGE Cdp/-