IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 MFA.No. 464 of 1997(B) --------------------------------- OP MV.255/1989 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR. .................... APPELLANT/ 3RD RESPONDENT ------------------ NATIONAL INSURANCE COMPANY LTD., REP.BY THE ADMN. OFFICER, REGIONAL OFFICE, KOCHI. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/ CLAIMANT AND RESPONDENTS 1 TO 2 AND 4 TO 6 ---------------------- 1. SANTHA, D/O. KANTHAI, THARAMMEL HOUSE, KUNDAZHIYOOR, PADOOR, VENKITANGU, PANCHAYATH. 2. E.D.ANTONY, S/O. DEVASSY, EDAKKALATHU CHENGALAI HOUSE, MULLASSERI (DIED), (LEGAL REPRESENTATIVES IMPLEADED AS RESPONDENTS 4 TO 6). 3. SATHEESAN, S/O. SANKUNNY, ARIYAKKARA HOUSE, THANAVEETHY, MULLASSERY. 4. ANIE, W/O. E.D. ANTONY, EDAKKALATHUR, CHANGALAI HOUSE, MULLASERY. 5. JOBI, S/O. E.D. ANTONY, EDAKKALATHUR CHANGALAI HOUSE, MULLASSERY. 6. BRITTO, S/O. E.D.ANTONY, EDAKKALATHUR CHANGALAI HOUSE, MULLASSERY. BY ADV. SRI.N.P.SAMUEL - R4 TO R6 SRI.K.PADMANABHAN - R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2008, ALONG WITH MFA NO. 1356 OF 1997 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A. NO.464/1997 ORDER ON CMP. NOS. 1876/1997, 7564/2000/ IN MFA. 464/1997 DISMISSED 27.05.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N.KRISHNAN, J. -------------------------- M.F.A. Nos. 464, 493, 1356 of 2007 & 21, 259 of 1998 --------------------- Dated this the 27th day of May, 2008 JUDGMENT These appeals are filed against the common award passed by the Motor Accident Claims Tribunal, Thrissur. MFA 464/97 is preferred against the award passed in OP(MV) 255/89. MFA 493/97 is preferred against the award passed in OP(MV) 399/89. MFA 1356/97 is preferred against the award passed in OP(MV) 535/89. MFA 21/98 is preferred against the award passed in OP(MV) 536/89. MFA 259/98 is preferred against the award passed in OP 537/89. 2. In all these cases the claimants were traveling in a trailor of a tractor after harvesting operations. Unfortunately the tractor met with an accident resulting in injuries to the claimants. In all these cases amounts had been awarded by the claims Tribunal with a direction to the Insurance Company to pay the amount. The dispute that arises for determination in these appeals is regarding the liability of the Insurance Company to indemnify the owner for the reason that the persons who were injured in the accident were not covered by the terms of the policy. The Tribunal held that both the tractor and trailor were insured and the claimants in these cases were the representatives of the owner of the goods traveling in the trailor and they are covered by Sec. 95 of the Motor Vehicles Act, 1939 and MFA Nos. 464/07 and Conn. Cases 2 therefore the company is bound to indemnify the owner. In these appeals it is contended that it is no so and there was no coverage statutorily under Sec. 95 and therefore the award requires interference by this court. 3. The point that arises for determination is (i) whether the Insurance Company is liable to indemnify the owner (ii) in case of non liability whether it is entitled to get the amount recovered from the owner. For the sake of convenience, both these points are answered together. The short short question that arises for determination in these appeals is about the liability of the Insurance Company to indemnify the owner in a case which only has a statutory policy and whether it will cover the risk of the persons accompanying the owner of the goods. The agricultural labourers after harvesting the crops were transporting the harvested crops in the trailor of a tractor which met with an accident. There had been confusions regarding the liability and now the position is well settled. Even if it is admitted that the persons injured in the accident were the representatives of the owner of the goods when there is only a statutory policy whether they will be covered is now well settled by the decision of the courts. In the decision reported in National Insurance Co. Ltd. v. Chinnamma [2004 (3)KLT 397 (SC)] the Apex court held “S.147(1) of the Motor Vehicles Act, 1988 is in pari materia with the provisions of Sec.95(1) of the Motor Vehicles Act, 1939. In the year 1994, S.147 was amended by MFA Nos. 464/07 and Conn. Cases 3 reason of Act 54 of 1994 with effect from 14.11.1994 in terms whereof the words “including owner of the goods or his authorized representative carried in the vehicle” were added after the words “against any liability which may be incurred by him in respect of death of or bodily injury to any person.” An insurance for an owner of the goods or his authorized representatives travelling in a vehicle became compulsory only with effect from 14.11.94 i.e., from the date of coming into force of the amending Act 54 of 1994.” Again the question of liability was also considered by the Apex court in the decision reported in Mallawwa and others v. Oriental Insurance Co. Ltd. and others [1999 Accidents Claims Tribunal Page 1]. There were different views of different courts including this court and ultimately the Apex court held in para 22 of the judgment that “Therefore it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under Sec.95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of the counsel for the Insurance Company will have to be accepted and the Insurance Company held not liable under the requirements of the Motor Vehicles Act.” 4. So the statutory position is very clear that prior to the amendment of Sec.147 of the Motor Vehicles Act w.e.f. 14.11.94 the liability of covering the owner of the goods or his representative is not covered by a statutory MFA Nos. 464/07 and Conn. Cases 4 policy unless there is extra coverage by the Contract of insurance between the parties. Therefore this is a case where the liability cast on the Insurance Company has to be set aside and they have to be exonerated from the liability. But things had happened long back as early as in 1989 and the Insurance Company has even satisfied the award amount and so it may not be possible to direct the Insurance Company to get it from the claimants to whom the amount is paid. Since under the contract of insurance the liability to indemnify does not arise, it is for the owner of the vehicle to reimburse that amount to the Insurance company. To that extent award is modified. 5. Therefore, I pass an order whereby I permit the Insurance Company to recover the amount that is paid in favour of the claimants from the owner of the vehicle by way of execution of this order. To this extent the appeals are allowed. M.N.KRISHNAN, JUDGE vps