IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 MACA.No. 1227 of 2005() ----------------------- OPMV.824/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): APPELLANT/3RD RESPONDENT: --------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, PALA NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, AJAY VIHAR, KOCHI-16. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONERS AND RESPONDENTS 1 & 2: ------------------------------------------------- 1. ANIAMMA, W/O. LATE JOSE JOSEPH, PARALYIL HOUSE, KADANADU P.O., MEENACHIL TALUK. 2. ALPHONSA (MINOR), D/O.LATE JOSE JOSEPH, -DO- -DO-. 3. SONIA (MINOR), D/O. LATE JOSE JOSEPH, -DO- -DO-. 4. K.J. JOSEPH, S/O. OUSEPH, KOCHUPARAMBIL HOUSE, PAYAPPAR, MUNDUPURAM KARA, LALAM VILLAGE, MEENACHIL TALUK. 5. BENNY JAMES, S/O. JAMES, THAYYIL HOUSE, KOLLAPPALLY, ANTHINADU P.O. (MINOR RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER 1ST RESPONDENT). ADV. SRI.MATHEW JOHN (K) FOR R4,5 SRI.SUJESH MENON V.B. FOR R4,5 SRI.PHILIP T.VARGHESE FOR R1 TO R3 SRI.THOMAS T.VARGHESE FOR R1 TO R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.11.2008, ALONG WITH MACA NO. 1192 OF 2005 MACA NO. 1230 OF 2005 MACA NO. 1233 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- M.A.C.A. Nos. 1227,1230,1233 & 1192 OF 2005 -------------------------------------------- Dated this the 25th day of November, 2008 JUDGMENT Ramachandran Nair,J. Appeals are filed by the insurance company challenging the compensation awarded by the MACT to various claimants in the same accident. A truck carrying four persons, besides the driver with load of rubble, capsized leading to death of three persons and injury to other person. Even though claimants filed claim petitions stating that the deceased persons and injured were passengers along with goods in the truck, at the evidence stage the registered owner adduced evidence with the help of claimants to prove that victims were walking on the road after finishing their work. Based on this evidence, MACT awarded compensation against the insurer treating the claim as that of third parties. It is mainly against this finding of the MACT that the insurance company has filed appeals. We have heard senior counsel appearing for the insurance company, counsel appearing for the 2 registered owner and counsel appearing for the beneficiaries. 2. We are unable to uphold the finding of the MACT that victims were padestrians knocked by the truck involved. In fact the case of the claimants themselves is that victims were travelling along with goods in the truck. The contrary evidence adduced is only at the instance of registered owner specifically to cover the victims under the Act policy. We are of the view that evidence which is contrary to the averments in the claim petitions is manipulated and unbelievable. On the other hand, the case of the claimants, as stated in the claim petitions, that the victims being loading and unloading workers, were travelling along with goods at the time of accident, is quite realistic, natural and genuine. Therefore the case of the insurance company that all the claimants are not entitled to compensation under the Act policy is only to be upheld and we do so by reversing the order of the MACT to that extent. 3. We had occasion to go through the Act policy covering third party claim and damage to property. However, it is seen that additional premium is collected by the insurer for two employees and one non- 3 fare paying passenger. Obviously one employee is the driver who has no claim. So far as others are concerned, there is no evidence adduced by anybody. It is not known whether the registered owner, namely, insured, himself was engaged in the business, and if so, all are his employees. Since there is no contrary evidence, we feel on equitable consideration we should take that the truck was engaged by it's owner for transport of goods and so much so two of the victims are covered by the policy. Going by the ratio adopted by the Supreme Court in the decision in NATIONAL INSURANCE CO. LTD. V. ANJANA SHYAM, (2007) 3 K.L.T. 993 (SC), we modify the award as follows. The insurance company will deposit two of the six compensation amounts awarded, which together constitute Rs. 6.37 lakhs with the same rate of interest awarded by MACT from the date of application till date of payment after adjusting total deposits so far made. From out of the above, a sum of Rs. 1.75 lakhs with proportionate interest each should be given to legal representatives of each of the persons who died and the balance Rs. 1,12 lakhs with proportionate interest should be paid to injured-claimant. However, this does not bar the 4 claimants from claiming balance amount from other respondents. Appeals stand allowed in part as above. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk 5