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 19TH JULY 2010 / 28TH ASHADHA 1932 MACA.No. 136 of 2004(Y) ----------------------- OP(MV) 296/2000 ON THE FILE OF THE MACT, THODUPUZHA.. APPELLANTS/PETITIONERS ------------------------------------ 1. SATHEESAN @ APPU, S/O. VELAYUDHAN, ARAMKUNNPURATHU HOUSE, CHURULI KARA, KANJIKUZHI VILLAGE, IDUKKI 2. AMALKUMAR S/O. SATHEESAN, AGED 4 YEARS, (MINOR), REPRESENTED BY HIS FATHER SATHEESAN @ APPU SW/O. VELAYUDHAN ARAMKUNNUPURATHU HOUSE, CHURULI KARA, KANJIKUZHI VILLAGE, IDUKKI 3. AMMU D/O. SATHEESAN, AGED 1 YEAR (MINOR) REPRESENTED BY HER FATHER SATHEESAN @ APPU, S/O. VELAYUDHAN, ARAMKUNNUPURATHU HOUSE, CHURULI KARA, KANJIKUZHI VILLAGE, IDUKKI BY ADV. SRI.JOICE GEORGE RESPONDENT(S): RESPONDENTS --------------- 1. GEORGE JOSEPH S/O. JOSEPH, VAYALIL HOUSE CHELACHUVADU KARA, KANJIKUZHY VILLAGE. 2. SHIJU V.J., THURUTHIYIL HOUSE, CHURULI, CHELACHUVADU P.O., KANJIKUZHY VILLAGE, IDUKKI 3. NATIONAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, THODUPUZHA. ADVS.M/S.GEORGE MATHEW & A.V.TELLES FOR R1 ADV. SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19/07/2010 ALONG WITH M.A.C.A. 74/2007 & 164/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 136/2004, 74/2007 & 164/2007 ------------------------------------------------------ Dated: JULY 19, 2010 JUDGMENT Basheer, J. These appeals are being disposed of by this common judgment since they are directed against a common award arising from a batch of five claim petitions filed under sec.166 of the Motor Vehicles Act. 2. A jeep belonging to the common appellant in MACA 74/2007 & 164/2007 capsized and some of the passengers therein sustained injuries, and one of them later succumbed to the injuries sustained by her. The legal heirs of the deceased and the other victims laid five claim petitions before the Tribunal alleging negligence on the part of the driver of the jeep for the accident. 3. The Insurance Company with which the vehicle was admittedly insured contended that the policy issued by it was only an 'Act only' policy and therefore the victims who were travelling in the jeep as “paid passengers” were not liable to get any compensation from the Company. In other words, the contention was that the owner of the jeep was not liable to be indemnified by the Insurance Company since he had been using the vehicle as a taxi jeep in violation of the policy conditions. M.A.C.A. 136/2004, 74/2007 & 164/2007 2 4. The above contention was accepted by the Tribunal though compensation was awarded in all the claim petitions depending on the nature of injuries. However, the Insurance Company was directed to pay the compensation to the claimants and recover it from the owner of the vehicle. 5. The appellants in MACA 164/2007 are the legal heirs of the deceased passenger. The grievance of the appellants is that the compensation awarded by the Tribunal is too inadequate and low. 6. Sri George Mathew, learned counsel for the common appellant in MACA 74/2007 & 164/2007 submits that there was absolutely no evidence to show that he had been using the vehicle as a taxi jeep. He further contends that even assuming he had violated the policy conditions and carried some passengers in excess of the seating capacity, it could not have been held that the said violation would have caused the accident. He placed reliance on a decision of their Lordships of the Supreme Court in National Insurance Co. Ltd. v. Swaran Singh {2004 (3) SCC 297} in this context. The learned counsel placed heavy emphasis on certain observations made by their Lordships on the beneficial aspect of the legislation. He contends that in the absence of any evidence to show that the jeep capsized only because some passengers were carried in it, be it either M.A.C.A. 136/2004, 74/2007 & 164/2007 3 gratuitously or on payment of some fare, the Tribunal ought not to have allowed the insurer to recover the compensation from the appellant/owner after paying the same to the claimants. 7. We are afraid the above decision will not come to the aid or rescue of the appellant in any manner. The decision in the above case revolved around the question whether absence of driving licence of the driver of the offending vehicle would exonerate the Insurance Company from the liability to pay compensation to the third parties. The Apex Court answered the above question in the negative and held that going by the scheme of the Act, particularly keeping in view the beneficial aspect of the legislation, the Insurance Company will be liable to indemnify the third party, though, of course, it would be entitled to recover the same from the owner of the vehicle who had committed breach of the policy conditions. 8. In the case on hand, the appellant does not have a case that the policy obtained by him was not an 'Act only' policy, But, according to the appellant, in an interior village there may be many acquaintances, friends and relatives who may ask for a free lift in the vehicle. There may also be occasions when the family members may have to travel in the jeep. The only sin committed by the appellant was that he had failed to pay additional premium at the time when the M.A.C.A. 136/2004, 74/2007 & 164/2007 4 policy was taken. But, according to the learned counsel, the appellant had not committed any willful breach of the policy conditions. Therefore there was no justification in mulcting the appellant with the liability to pay the compensation. 9. It has to be remembered that issuance of a policy is a contractual arrangement. The appellant had taken the policy knowing the implications thereof. An “Act only” policy covers the risk as against the third parties only, as provided under sec.147 of the Motor Vehicles Act. Therefore the Insurance Company will be well within its rights to contend that only third parties will be liable to be covered going by the terms of the policy. Having perused the entire materials available on record, particularly in the absence of any specific pleading or proof, it cannot be said that the Tribunal had committed any error in holing that the Insurance Company will be entitled to recover the amount from the appellant. Therefore M.A.C.A. 74/2007 & 164/2007 are liable to be dismissed. We do so. 10. In this context it must be remembered that the appellant and his driver did not choose to contest the claim petitions before the Tribunal. Though learned counsel made a persuasive plea to afford a further opportunity to the appellant by remanding the case to the Tribunal, we are not inclined to accede to the request at this distance M.A.C.A. 136/2004, 74/2007 & 164/2007 5 of time, more importantly since it is brought to our notice that the Insurance Company had already deposited the entire compensation payable to the claimants in all these cases. 11. As far as M.A.C.A. 136/2004 is concerned, the grievance of the appellants is that the compensation awarded for the death of Sindhu is too inadequate and low. We have carefully perused the award. The Tribunal has awarded a sum of Rs.1,74,000/- with 9% interest thereon. The Tribunal after considering the evidence adduced by the appellants in this case came to the conclusion that the monthly income of the deceased could be taken as Rs.1250/-. The appropriate multiplier as provided under the Schedule was taken as 16. The compensation was calculated on that basis. In the facts and circumstances of the case, we do not find any reason to interfere with the award passed by the Tribunal. Therefore M.A.C.A. 136/2004 also fails. It also is dismissed. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-