IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 23RD OCTOBER 2008 / 1ST KARTHIKA 1930 MACA.No. 224 of 2004() ---------------------- OPMV.569/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): 3RD RESPONDENTN/APPELLANT. ---------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, REP. BY THE DIVISIONAL MANAGER, KOTAYAM BRANCH. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANTS AND R1 AND 2. -------------------------------------- 1. BIJU SEBASTIAN, THANNICKAL HOUSE, VALLICHIRA POST, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. J.PRAKASH, S/O.JAGANNATH,. NO.603/2, GOVT.JR.COLLEGE ROAD, PEENYA, BANGALORE. 3. Y.VENKATESH, S/O.YALAKKI NARSIMAIAH, NO.764, SRS ROAD, PEENYA, BANGALORE 58. ADV. SRI.K.SURENDRA MOHAN FOR R1 SRI.C.HARIKRISHNAN FOR R2 & R3 SRI.P.RADHAKRISHNAN NAIR FOR R2 & R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/10/2008, ALONG WITH MACA NO. 222 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- M.A.C.A. No. 224 & 222 OF 2004 -------------------------------------------- Dated this the 23rd day of October, 2008 JUDGMENT Ramachandran Nair,J. These connected appeals are filed by the insurance company against the award holding them liable to indemnify the owner and driver for the compensation found payable by the MACT. We have heard standing counsel appearing for the insurance company and counsel appearing for the respondents in both the cases. 2. This is a case where a goods van crashed behind a stationary lorry leading to death of one passenger and injury to another in the van. While the claim of the respondents is that the deceased and the injured were in the vehicle to take it to godown to bring goods, the insurance company's case is that both the passengers, one who died, and the other who sustained injury, were gratuitous passengers in the goods vehicle not covered by insurance policy. Counsel for the insurance company has produced policy document which shows that the vehicle was a light goods vehicle. Of course premium is seen collected to cover legal liability to persons engaged in connection with operation and/or 2 loading and unloading of vehicles. The Supreme Court in the decision in UNITED INDIA INSURANCE CO. V. SURESH, K.K., JT 2008 (6) SC 244 held that gratuitous passenger in a goods vehicle is not covered by insurance policy and therefore insurance company is not liable to indemnify the owner by virtue of Section 147(1) of the M.V. Act. Counsel for the respondents-claimants submitted that the deceased and the injured at the time of the accident were travelling in the vehicle for lifting goods and consequently, they are covered by Section 147(1)(b) (i) of the Act. We feel in order to hold insurance company liable, the connection between the passengers and the goods or otherwise the purpose of their travel in the vehicle should be established through evidence. However, the owner and driver remained exparte and the claimants also did not adduce any oral or documentary evidence. Insurance company relied on the policy for their case that gratuitous passengers are not covered. Admittedly the tempo van was going empty at the time of the accident. However, if the two persons who were travelling at the time of the accident were engaged in taking the van to godown for lifting goods as stated in this Court, probably there may be coverage which is a matter to be considered by MACT with 3 reference to evidence. However, in the absence of any evidence, it is not possible for us to come to any specific conclusion on either way. Since evidence is required on the factual position, we feel one more opportunity can be granted to the parties before the MACT to refer to the evidence and argue the matter or if required to adduce fresh evidence regarding the mission of travel of two persons in the van at the time of the accident. Appeals are accordingly disposed of by setting aside the award with direction to MACT to reconsider the matter and pass orders afresh after hearing both sides and after giving them opportunity to adduce evidence. Whatever amount deposited or released by the insurance company will be adjusted or ordered to be refunded as and when final award is passed by MACT as directed above. MACT is directed to pass fresh orders within six months from now. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk 4