IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 MACA.No. 1240 of 2010() --------------------------------- OPMV.1737/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): 3RD RESPONDENT -------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT ----------------------------------------- 1. V.P.HASSAN, S/O.PAREETH, VALIYA VEETTIL, VALAM, SOUTH CHITTOOR P.O., COCHIN - 27, SOUTH CHITTOOR DESOM, CHERANELLOOR VILLAGE, KANAYANNOOR TALUK. 2. M.F.JOSEPH, S/O.FRANCIS, MOONJAPPILLY HOUSE, KALOOR, COCHIN - 17. 3. P.E.RASSAK, S/O.EBRAHIM, PEAZHUNGAPARAMBIL HOUSE, VATTEKUNNAM, EDAPPALLY P.O., COCHIN - 24. R1 BY ADV. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.NO.1240/2010 ORDER ON I.A. NO. 1758/2010 IN M.A.C.A.NO. 1240/2010 CLOSED 26/10/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO. JUDGE M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.1240 OF 2010 ............................................. Dated this the 26th day of October, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Ernakulam in OP(MV)No.1737/2003. The claimant sustained injuries in an accident while he was travelling in a goods auto rickshaw. The Tribunal awarded him a compensation of Rs.41,280/= and directed the insurance company to pay the amount. It is against that decision the insurance company has come up in appeal. 2. As usual the driver and owner had not chosen to contest the case before the trial court and in spite of notice in the delay petition having been received, they have not entered appearance and therefore the matter is proceeded with. The short question is whether the insurance company is to be made liable when it is proved that the claimant was travelling in the goods auto rickshaw as the owner of the goods or the representative of the owner of the goods. 3. Now the matter is concluded by a decision of the Apex Court in United India Insurance Co. Ltd. v. Suresh (2008 (4) KLT 552). In para 13, the Hon'ble Apex Court : 2 : M.A.C.A.NO.1240 OF 2010 held as follows: “If the claimant had not been travelling in the vehicle as owner of 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 an 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”. 4. So in the light of this authoritative pronouncement, it has to be held that a goods auto rickshaw is not expected to carry passengers for the reason that it does have only driver's seat. Therefore it does not cover the risk of the person who travels and so the insurance company is liable to be excluded. I do so. 5. In the result, the MACA is partly allowed and the insurance company is exonerated from the liability making it very clear that the claimant can proceed against respondents 1 and 2 jointly and severally for the amount awarded by the Tribunal. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 3 : M.A.C.A.NO.1240 OF 2010 : 4 : M.A.C.A.NO.1240 OF 2010 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 8th day of October, 2010. J U D G M E N T