IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 MACA.No. 598 of 2009() -------------------------------- OPMV.3076, 3077, 3078 OF 2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/3RD RESPONDENT IN THE OP :- ------------------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD, THRISSUR, REPRESENTED BY THE AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD, REGIONAL OFFICE, ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.A.R.GEORGE RESPONDENTS/CLAIMANT & 1ST RESPONDENT IN THE OP :- ------------------------------------------------------------------------------------- 1. SANIL, S/O. SIVADAS, CHERUVALLYIL HOUSE, VELATHUR VILLAGE, THRISSUR TALUK. 2. VARGHESE C.J., CHIRAMEL HOUSE, PO KANJANY, TRICHUR DISTRICT. 3. JOSEPH, S/O.JACOB, CHIRAMEL HOUSE, NEAR SREE SANKARA SHED, P.O. KANJANY, THRISSUR DISTRICT. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2010 ALONG WITH MACA NOs. 606, 608 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt M.N. KRISHNAN, J. ........................................... M.A.C.A. Nos.598,606 & 608 OF 2009 ............................................. Dated this the 18th day of August, 2010. J U D G M E N T These appeals are preferred against the awards of the Claims Tribunal,Thrissur inOP(MV)Nos.3077/2002,3076/2002 and 3078/2002. The Tribunal passed a common award fixing the amount of compensation at Rs.9,350/= in OP(MV) No.3076/02, Rs.55,100/= in OP(MV)No.3077/2002 and Rs.23,650/= in O.P.(MV)No.3078/2002. It directed the insurance company to deposit the amount also. It is also stated that on deposit of the amount in OP(MV)3077/2002, the insurance company is entitled to realise it from the first respondent. It is against these decisions, the insurance company has come up in appeal. Status of the persons as found by the Tribunal in its award in para-15 is as follows: 2. The petitioner in OP(MV)No.3077/2002 was sharing the seat of the driver in a goods auto rickshaw. The other two persons were travelling in the platform of the goods auto rickshaw. The Tribunal found that since the petitioners in OP(MV)Nos.3076/2002 and 3078/2002 were accompanying : 2 : M.A.C.A. Nos.598,606 & 608 OF 2009 the goods as the representative of the owner of the goods, there is statutory liability for the insurance company and hence made the insurance company liable. With respect to O.P.(MV)No.3077/2002, the Tribunal held that sharing of the seat is not permissible and therefore, held that the insurance company is not liable but in the operative portion directed the company to deposit the amount and realise it from the first respondent. 3. I am afraid that the Tribunal has totally misapplied law and had arrived at a wrong decision. Section 147 of the Motor Vehicles Act by virtue of the amendment of Act 54 of 1994 which came into force on 14.11.1994 permitted owner of the goods or the representative of the owner of the goods to be covered by statutory policy. But it is a condition precedent to that the vehicle is designed in such a way that it is permitted to carry persons in the vehicle. For example, when it is a lorry and it is loaded with goods and the owner of the goods or the representative of the owner of the goods is occupying the cabin provided in the lorry, then by virtue of the statutory fiction, the insurance company shall be liable to : 3 : M.A.C.A. Nos.598,606 & 608 OF 2009 pay. But, here we are concerned with goods auto rickshaw. In a goods auto rickshaw, no person is permitted to be carried at all as a passenger. Driver's seat is only one. Nobody is expected to share the seat of the driver as well. This has been considered by the Hon'ble Apex Court in the decision reported in United India Insurance Co. Ltd. v. Suresh(2008 (4) KLT 552). The Hon'ble Supreme Court in para-13 made it very clear that“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 and therefore exonerated the insurance company from the liability on the ground that policy does not cover such a person”. Similarly it has also to be held that a person can be carried only in the cabin of the vehicle. Unless there is cabin, one cannot take the passenger in that vehicle. Therefore when persons travelling in the platform, they are not covered by the : 4 : M.A.C.A. Nos.598,606 & 608 OF 2009 statutory fiction under Section 147 of the Motor Vehicles Act. The said position is covered by the Supreme Court in the decision reported in National Insurance Co. Ltd. v. Cholleti Bharatamma (2008 (1) SCC 423). The Hon'ble Supreme Court in para 19 held that it is well settled that the owner of the goods means only the person who travels in the cabin of the vehicle. 4. So applying the dictum laid down in the two decisions referred to above, it is very clear that goods auto rickshaw is not designed to carry passengers along with the goods. Therefore Section 147 will not come to the rescue of the claimant and statutory liability cannot be fastened on the insurance company. 5. Therefore, the award directing the insurance company to deposit the amount in two cases and to deposit and get reimbursed in another case is invalid under law and therefore it is set aside. The insurance company is totally exonerated from the liability and the claimant is at liberty to proceed against respondents 1 and 2 in the claim petition jointly and severally for the realistion of the amount. The : 5 : M.A.C.A. Nos.598,606 & 608 OF 2009 amount deposited by the insurance company under Section 173 of the Motor Vehicles Act shall be reimbursed to them on appropriate application. These appeals are disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : M.A.C.A. Nos.598,606 & 608 OF 2009