IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 MACA.No. 1461 of 2006() ----------------------------------- OPMV.1250/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA APPELLANT/3RD RESPONDENT: ---------------------------------------------- M/S.BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., REGISTERED OFFICE CUM HEAD OFFICE, G.E. PLAZA AIRPORT ROAD, YERWADA, PUNE-411 006. BY ADV. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY RESPONDENTS/PETITIONER/1ST & 2ND RESPONDENTS: --------------------------------------------------------------------------------- 1. THE MANAGING PARTNER, TRAVANCORE PHARMA, 41/1353, 31, AMBEDKAR STADIUM, ERNAKULAM-35. 2. JAYANDHU, S/O.NANDAGOPAN, RESIDING AT THEKKEPARAMBIL, NEAR EAST OF KANDAKARNANNAM TEMPLE, ANDHAKARANAZHI KARA, PATTANAKKADU VILLAGE. 3. V.V.VINOD, AGED 26 YEARS, S/O.VISWANATHAN, RESIDING AT VALLIPPUAMBI NIKARTHU, PARAYIL BHAGAM, PATTANAKKADU KARA, VAYALAR MEKKU VILLAGE, CHERTHALA. ADV. SRI.SAJI VARGHESE FOR R3 SMT.MARIAM MATHAI FOR R3 SRI.GEORGE JACOB (JOSE) FOR R3 SMT.RESHMI POULOSE FOR R3 SRI.MADHAVANKUTTY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1461 OF 2006 --------------------- Dated this the 23rd day of July, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Muvattupuzha, in OP(MV) 1250/02. The claimant sustained injuries in a road accident and the Tribunal awarded him a compensation of Rs.56,900/- and the liability is fixed on the Insurance Company to pay the amount. Aggrieved by the casting of liability, the Insurance Company has come up in appeal. 2. Heard the counsel for both sides. Bare facts necessary for disposal of the appeal are as follows: 3. The claimant was an employee of the 1st respondent in the claim petition. He was travelling in an Omni Maruti Van. The said vehicle was not a goods carriage. It is submitted that he was travelling in the vehicle for the purpose of collecting money due under the business of the 1st respondent company. The Tribunal found that he will come under the category of “any person” mentioned under Section 147 (1)(b)(i) for whom there is a statutory coverage and therefore the Insurance Company is bound to MACA No.1461/06 2 indemnify. Sec.147(1)(b)(i) covers the risk of “any person” including the owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party. Proviso to Section 147(1) mentions that no policy is required for an employee engaged in driving the vehicle. (2) If it is a public vehicle to the conductor (3) if it is a goods carriage being carried in the vehicle and (4) to cover any contractual liability. 4. So far as the proviso is concerned, there is no case that additional premium is paid in order to cover any liability. Since the vehicle in which he was travelling was not a goods carriage, one cannot classify him as a passenger in a goods carriage. Therefore the proviso to section 147 will not come to the rescue of the claimant. 5. The next question is whether he will come under the clause “any person” or the owner of the goods or the representative of the owner of the goods. Admittedly, the vehicle was not a goods vehicle. He was not travelling along with the goods as representative of the owner of the goods. So that provision also will not apply. Now what remains is whether he will come within the ambit of “any person”. In the decision reported in New India Assurance Co. Ltd. v. Asha Rani [2003 (1) KLT 165 (SC)] the Apex court held that “In MACA No.1461/06 3 view of the changes in the relevant provisions in 1988 Act vis-a-vis 1939 Act, we are of the opinion that the meaning of the words “any person” must also be attributed having regard to the context in which they have been used. i.e. 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.” 6. The Apex court held that till it was introduced by amendment Act 54 of 1994, a person travelling as owner of the goods or the representative of the owner of the goods was not even covered. Now the impact of this decision was considered by the Apex court in the case of a pillion rider in United India Insurance Co. Ltd. v. Tilak Singh [2006 (4) SCC 404]. In para 21 the Apex court held that “In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh MACA No.1461/06 4 who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger.” So this decision makes it clear that a person travelling in a private vehicle unless is covered by payment of extra premium is not entitled to the statutory coverage contemplated under Sec.147 of the Motor Vehicles Act. Therefore, “any person” does not take in the present claimant who can only be a gratuitous passenger in a private vehicle not covered by the policy. 7. From these discussions I hold that the view taken by the Tribunal is incorrect and is liable to be set aside. I do so. Therefore the appeal is allowed and the 3rd respondent/ appellant herein is exonerated from the liability. The claimant will be entitled to get compensation from respondents 1 and 2 jointly and severally. If the appellant has deposited any amount by way of the requisite to file an appeal under Sec.173 of the Motor Vehicles Act, it is entitled to withdraw the entire amount deposited before the Tribunal. M.N.KRISHNAN, JUDGE vps MACA No.1461/06 5