IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 MACA.No. 1240 of 2007() ----------------------- OPMV.1110/1998 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... APPELLANT: APPELLANT/PETITIONER ---------------------------------- HASSAN RAWTHER, VILAYIL KIZHAKKATHIL, ATHIKKATTUKULANGARA P.O., NOORANAD. BY ADV. SRI.K.HARILAL SRI.R.GOPAN RESPONDENT(S): --------------- 1. VARGHESE JOHN, MULLATHANATHU VEETTIL, NANGIARKULANGARA, CHEPPAD. 2. JAMALUDHEEN KADAMPASSERIL HOUSE, NANGIARKULANGARA P.O.,HARIPPAD. 3. ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,THIRUVALLA. ADV. SRI.S.MOHANAN FOR R2 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009,THE COURT ON 23/09/2009 PASSED THE FOLLOWING: P.R.RAMAN & P.R. RAMACHANDRA MENON, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ M.A.C.A. No.1240/2007 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of September, 2009 J U D G M E N T Ramachandra Menon J. Sustainability of the award passed by the Tribunal in O.P.(MV). No.1110/1998, whereby the claim petition preferred by the claimant in respect of the injuries sustained by him while travelling in a lorry was turned down, is the subject matter of the appeal before this Court. 2. The petitioner was working as a Conductor in the K.S.R.T.C. On 27/12/1997, by midnight, he was returning home and while waiting for conveyance, a lorry bearing registration No.KL-7P/3418 driven by the first respondent, owned by the second respondent and insured by the third respondent came the way. The petitioner got into the vehicle and while proceeding along the Kayamkulam-Punalur public road, the vehicle, ran into a ditch and hit against an electrical post causing grievous injuries to the appellant which led to the claim petition filed before the Tribunal attributing negligence on the driver of the lorry and thus seeking for compensation, contending that he was travelling in the goods carriage, accompanying his goods carried in the vehicle. M.A.C.A No.1240/2007 -:2:- 3. The claim was resisted by the first respondent-driver stating that there was absolutely no negligence on his part; that the case put forth by the claimant contending that he was travelling in the lorry accompanying his goods was utter falsehood; that the claimant requested for a 'lift' when he was told that the driver was not authorised by the owner of the vehicle to permit any passenger to be carried in the goods carriage and further that he would be travelling at his own risk. Accordingly, the claimant was permitted to travel in the lorry and while proceeding so, the accident occurred when the first respondent had to swerve the vehicle to the left, because of the rash and negligent driving of another vehicle which came from the opposite side, so as to avoid a major accident and save their lives. 4. The second respondent/owner filed a separate written statement contending that absolutely no liability could be fastened on the owner; that the second respondent had never instructed the first respondent to carry any passenger in the lorry and that the appellant/claimant was being taken in the cabin of the vehicle, at the latter's risk. It was further contended that the appellant was only a 'gratuitous passenger' and that no liability could have been mulcted on the owner of the vehicle under any circumstances. M.A.C.A No.1240/2007 -:3:- 5. The third respondent Insurance Company filed written statement, specifically contending that the goods carriage involved in the accident was never permitted to carry any passengers and that the insurance policy did not cover any such person carried in the vehicle. It was also contended that absolutely no goods were being carried at the relevant time and hence the Insurer was not bound to indemnify the owner, in respect of the claim preferred by a gratuitous passenger. 6. During the course of trial, the appellant/claimant was examined as PW.1 and Exts.A1 to A9 were marked. The driver of the vehicle was examined as RW.1. Ext.B1 policy was marked on the side of the third respondent/Insurance Company. On conclusion of the trial, the Tribunal, after appreciating the materials forming part of the record, arrived at a clear finding in paragraph (8) of the award, that the claimant miserably failed to prove the negligence on the part of the first respondent/driver. 7. With regard to the case put forth by the petitioner that he was accompanying the goods carried in the lorry, the Tribunal found that it was absolutely a false statement and that no goods were carried in the lorry at the relevant point of time and further that the claimant had admitted in the cross-examination that he had asked for a 'lift' in the lorry and was permitted M.A.C.A No.1240/2007 -:4:- to be carried in the vehicle driven by the first respondent. Accordingly, placing reliance on the decision in United India Insurance Co.Ltd. v. Tilak Singh [2006 (2) KLT 884 (SC)] and also the law declared by the Apex Court in New India Assurance Co.Ltd. v.Asha Rani [2003 (1) KLT 165 (SC)], it was held that the claimant was only a 'gratuitous passenger' travelling in a goods vehicle and was not liable to be compensated under any circumstances; which is under challenge in the present appeal. 8. The learned counsel for the appellant submits that the observation and finding made by the Tribunal on the question of negligence as well as on the rights and liabilities to satisfy the claim are wrong and mis- conceived. It is also stated that the claimant, despite his assertion in the proof affidavit attributing negligence on the part of the driver of the lorry, was not cross examined effectively, to substantiate the case put forth from the part of the respondents, disputing the negligence. Reliance is placed on the decisions rendered by this Court in Gopalakrishnan Embrandiri v.Krishnankutty and others [1966 KLT 607], Pushpabai Purshottam Udeshi and others v.M/s. Ranjith Ginning and Pressing Co. (P) Ltd. and another [(1977) 2 SCC 745] and also State of Maharashtra and others v. Kanchanmala Vijaysing Shirke and others [(1995) 5 SCC 659] M.A.C.A No.1240/2007 -:5:- to contend that, even under such circumstances, there is a liability on the part of the owner of the vehicle to compensate the gratuitous passenger. Irrespective of the fact that the claimant had entered the goods carriage on request, the liability of the owner will not vanish automatically, if the driver of the vehicle engaged by the owner had pursued some unauthorised act or if he had performed the authorised act in an unauthorised manner, causing injuries to the victim, which in turn is liable to be compensated; submits the learned counsel for the petitioner. 9. Before proceeding to consider the legal aspects as discussed in the various decisions cited by the learned counsel, the basic issue is on the fixation of negligence. Unless and until the driver of the vehicle is held as negligent, the question of 'vicarious liability' does not arise at all. In such circumstances, we perused the records including the evidence tendered from the part of the claimant as PW.1 and also the evidence adduced by the driver of the vehicle as RW.1, besides other documentary evidence. 10. True, in the proof affidavit filed by the claimant, it is stated that the vehicle in which he was travelling, was being driven by the first respondent in a rash and negligent manner. The sequence of events as to how the accident had occurred was narrated by PW.1 in the FI statement M.A.C.A No.1240/2007 -:6:- given before the police, wherein no insinuation attributing rash and negligent driving on the part of the driver is made specifically. The learned counsel however submits that, PW.1 has not been cross-examined on the question of negligence, so as to rebut the contentions. However, the first respondent driver has filed a proof affidavit, specifically contending that there was absolutely no negligence on his part and that the incident was only an 'inevitable one', when he tried to avoid a major accident, on seeing another lorry coming in a rash and negligent manner from the opposite side with dashing head lights and it was in such circumstance that the vehicle had to be swerved to the left, when it fell into a ditch and hit against an electric post, causing injuries to the claimant. Despite the specific statement in the proof affidavit, the claimant did not choose to cross-examine RW.1, the driver. The driver was cross-examined only from the part of the Insurance Company, to elicit the fact that the claimant had never called the vehicle on hire, nor was he travelling in the said vehicle accompanying any goods. 11. On the basis of the evidence let in, a specific finding was arrived at by the Tribunal, (particularly, in view of the admission made by PW.1 during the course of cross-examination), that the case of the claimant M.A.C.A No.1240/2007 -:7:- that he got injured while travelling in the lorry, accompanying his goods was a false one. True, a Division Bench of this Court has held as per the decision in United India Insurance Co. Ltd. v. Suresh [2006 (4) KLT 333] that carrying of goods at the relevant time is not a pre-requisite. But the said decision was overruled by the Apex Court in United India Insurance Co. Ltd. v. Suresh [2008 (4) KLT 552 (SC)]; whereby it was held that unless goods are carried in the vehicle at the relevant time, the concerned person who is authorised to travel as an owner (or representative) of the goods will not be entitled to get any benefit at all. In any view of the matter, the finding rendered by the Tribunal that no goods were being carried at the relevant time and as to the admission made by the claimant that he had entered into the vehicle after requesting for a 'lift', stands intact and does not call for any interference. 12. With regard to the question of negligence, as noted already, the pleading attributing negligence on the part of the first respondent/driver has been denied by him by filing a detailed written statement and further by adducing evidence when he was examined as RW.1. The evidence tendered by RW.1 driver as contained in the proof affidavit stands unrebutted, in so far as the claimant did not choose to cross-examine him. This being the M.A.C.A No.1240/2007 -:8:- position, the finding arrived at by the Tribunal in paragraph (8) that the claimant miserably failed to prove any negligence on the part of the first respondent also does not call for any interference. The question regarding the 'vicarious liability' is left open. In the above circumstances, we do not find that the appellant has established a case so as to interfere with the award passed by the Tribunal. The appeal fails and the same is dismissed accordingly. (P.R. Raman, Judge) (P.R. Ramachandra Menon, Judge) ms