IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 MACA.No. 95 of 2006(Y) ---------------------- (AGAINST THE AWARD DATED 03/08/2005 IN OPMV.848/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA) .................... APPELLANT(S): PETITIONER: ----------------------------------- P.R. NARAYANAN, S/O. LATE RAGHAVAN, PULINTHANATHUMALAYIL HOUSE, MINIPPALLY P.O., NOW RESIDING AT PUTHENPURAYIL HOUSE, ONAKKOOR P.O. BY ADV. SRI.T.K.KOSHY RESPONDENT(S): RESPONDENTS: --------------------------- 1. ULAHANNAN S.T., VIKAS BHAVAN, MONIPPALLY P.O. 2. THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, M.G.ROAD, ERNAKULAM. ADV. SRI.A.R.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------- M.A.C.A.No.95 of 2006 --------------------------------- Dated, this the 30th day of September, 2008 J U D G M E N T This appeal is preferred by the claimant, whose claim has been dismissed on the ground that he has contributed to the cause of the accident. The learned counsel would contend that the said finding is wrong. I will consider it differently under two headings, namely, the liability of the Insurance Company, so also whether there is a claim that can be entertained against the owner-cum-driver of the goods autorickshaw. So far as the Insurance Company is concerned, if a person is traveling in a goods autorickshaw, which is not designed to carry passengers, it will become a case of gratuitous passenger traveling in a vehicle. Admittedly, it is a goods autorickshaw and there is only one seat for the driver. The driver is not expected to carry anybody inside the said seat. This position is well settled by the decision of the Apex Court in United India Insurance Company Limited Vs. Suresh K.K. & Another , reported in 2008 AIR SCW 4739. In paragraph 13 of the said decision, the Apex Court held that :- “If the claimant had not been traveling in the vehicle as owner of M.A.C.A.No.95/2006 -2- the goods, he shall not be covered by the policy of the insurance. 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.” In this case, the claimant was traveling in the platform of the autorickshaw. He was not expected to travel in the platform of the autorickshaw and therefore, that also militate against his claim from the Insurance Company. So, from these facts, I hold the Insurance Company cannot be liable. 2. Now, the next question is regarding the liability of the owner-cum-driver of the autorickshaw. An owner of a goods autorickshaw is not expected to carry a person on the platform of the vehicle or on the seat, which can only accommodate one. In such cases, when a person is permitted to travel, there is primary negligence on the part of owner-cum-driver. At the most, the conduct of the claimant would attract contributory negligence and not total negligence. So, it is a matter that requires consideration and the finding of the Tribunal that the claimant is totally contributed to the accident and is improper is liable to be M.A.C.A.No.95/2006 -3- set aside. Therefore, the award under challenge is set aside and the matter is remitted back to the Tribunal. (1) It is found that the Insurance Company cannot be mulcted with the liability. (2) The Tribunal shall permit the claimant to adduce evidence in support of his contention regarding the negligence of the owner- cum-driver. (3) Since the owner-cum-driver has not appeared before the Tribunal or before this Court, the claimant is directed to take notice to him and the Tribunal, after permitting him to file a written statement, shall dispose of the matter in accordance with law. (4) The claimant is directed to appear before the Tribunal on 18/11/2008. (M.N.KRISHNAN, JUDGE) jg