IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 MACA.No. 538 of 2003(C) ----------------------- OPMV.2014/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/ 3RD RESPONDENT --------------------------------------- NEW INDIA ASSURANCE CO. LTD., CHANGANACHERRY BRANCH, REPRESENTED BY ITS ASST. ADMINISTRATIVE OFFICER, REGIONAL OFFICE, KANDOMKULATHY TOWERS, M.G.ROAD, ERNAKULAM. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL RESPONDENT(S): --------------- 1. PRASANNAKUMAR P.R., KUNEL PUTHUPARAMBU THRIKODITHANAM P.O., CHANGANACHERRY, NOW RESIDING AT MULANGATTIL HOUSE, PALLURUTHY 2. RADHA.G. W/O. PRASANNAKUMAR, KUNNEL PUTHUPARAMBU, THRIKODITHANAM P.O., CHANGANACHERRY, NOW RESIDING AT MULANGATTIL HOUSE, PALLURUTHY. 3. PRANAVE (MINOR) S/O. PRASANNAKUMAR, KUNNEL PUTHUPARAMBU, THRIKODITHANAM P.O., CHANGANACHERRY, NOW RESIDING AT MULANGATTIL HOUSE, PALLURUTHY, REPRESENTED BY 2ND RESPONDENT MOTHER 4. RAGHAVAN K.K., KUNNEL PUTHUPARAMBU, THRIKODITHANAM P.O., CHANGANACHERRY, NOW RESIDING AT MULANGATTIL HOUSE, PALLURUTHY 5. AMMINI RAGHAVAN, KUNNEL PUTHUPARAMBU, THRIKODITHANAM P.O., CHANGANACHERRY, NOW RESIDING AT MULANGATIL HOUSE, PALLURUTHY. 6. ANTONY JOSEPH, PALAKUNEL, MAMMOOD P.O., CHANGANACHERRY. 7. PRABHAKARAN.G., MUKKADAPARAMBIL, KANOTTU MADAPPALLY, CHANGANACHERRY. ADV. SRI.M.N.MATHEW FOR R7 SRI.T.K.RADHAKRISHNAN FOR ADDL.R2,4 & 5 SMT.K.L.SREEDEVI FOR ADDL.R2,4 & 5 SRI.T.K.RADHAKRISHNAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ----------------------------------------------- MACA No. 538 of 2003 ---------------------------------- Dated, this the 2nd day of December, 2009 J U D G M E N T P.R.Ramachandra Menon, J. Sustainability of the Award passed by the Tribunal, granting compensation in respect of a person, who sustained injuries while travelling in a goods carriage and mulcting the liability on the shoulders of the insurer, is the issue involved in this appeal preferred by the Insurance Company. 2. The injured was travelling in a mini lorry bearing No. KLB- 9250 owned by the first respondent, driven by the 2nd respondent and insured by the 3rd respondent, on 08.08.1994 at about 6.45 p.m. While so, allegedly due to the rash and negligent driving on the part of the driver of the mini lorry, it hit against some pedestrian and an electric post and thereafter overturned, causing injuries to the claimant; which led to the claim. 3. The owner and driver of the vehicle did not choose to contest the matter and were set exparte. The Insurer filed detailed written statement, specifically contending that the Policy issued in respect of the vehicle was an 'Act only Policy'; that the injured was only MACA No. 538 of 2003 2 a gratuitous passenger for whom there was no coverage under the Policy and hence that there was no liability for the insurer to indemnify the insured. 4. The claimant was examined before the Tribunal as PW1 who produced and marked Exts.A1 to A13; while Exts.B1 and B2 (policy certificate and commercial vehicle tariff) were produced and marked from the part of the insurer. After analyzing and appreciating the facts and circumstances, on the basis of the relative pleading and evidence on record, the Tribunal held that the accident was only because of the rash and negligent driving by the 2nd respondent. Taking note of the injuries sustained, the nature of engagement of the injured, his income, age, percentage of disability and other relevant facts and circumstances, the Tribunal awarded a total sum of Rs.1,51,000/- as the compensation, which was held as payable jointly and severally by the 3rd respondent, with interest at the rate of 9% per annum from the date of the petition till the date of deposit. 5. With regard to the specific contention raised from the part of the appellant/insurer as to the absence of coverage, the Policy being an 'Act only' Policy, it was observed by the Tribunal in paragraph 6 that the law was well settled in view of the decision of Apex Court in New India Assurance Company Vs. Sat Pal Sing [2000 (1) KLT 95], where it was MACA No. 538 of 2003 3 held that any person travelling in a goods carriage was entitled to be compensated, irrespective of the nature or class of the vehicle. It was accordingly that the liability was shifted to the shareholders of the appellant/insurer, holding that the liability is very much covered even under the 'Act only' policy. 6. We have heard both the learned counsel appearing on either side. The decision rendered by the Apex Court in Satpal Singh’s case relied on by the Tribunal was subsequently over ruled by the Larger Bench of the Supreme Court in New India Assurance Company Vs. Asha rani [2003 (1) KLT 165] referring to the relevant provisions of law including the definition of the term 'goods carriage' and also the changes brought into effect by virtue of the new Act. It was specifically held that a person travelling in a goods carriage will not come within the purview of “3rd party” so as to be compensated under the statute, under Section 147. This being the position, the finding and reasoning given by the Tribunal are no more liable to be sustained. 7. However, the learned counsel for the first respondent/ claimant submitted that the claimant was travelling in the goods carriage, not in the capacity as gratuity passenger, but was actually accompanying the goods carried in the vehicle. Learned counsel also submits that the owner or his representative accompanying the goods in the vehicle will MACA No. 538 of 2003 4 definitely come within the purview of 'Act only' policy itself and hence that the Award already passed by the Tribunal is liable to be sustained. 8. However, it is very much relevant to note that the status of a person who is travelling in a goods carriage was considered by the Apex Court and the law was declared as per the decision rendered in Mallawwa (SMT) & others Vs. Oriental Insurance Company and others [1999(1) SCC 403] holding that no such person is entitled to be compensated by the insurer under such circumstance. However the said decision was rendered with specific reference to the Old Act (MV Act, 1939). Later, doubting the decision rendered by the Apex Court in Satpal Singh’s case, the matter was referred to larger bench; which led to the decision rendered in Asha rani's cited supra. 9. It is also worthwhile to note that the legal position as noted and analysed by the Apex Court while rendering the decision in Asha rani's case was also with specific reference to the changed circumstance after the amendment which take place and brought into effect from 14.11.1994 as well. As made clear by the Apex Court, the owner or his representative travelling in a goods carriage was brought within the statutory coverage under 'Act only' policy only by virtue of the said amendment, (i.e., by Act 54 of 1994), which was brought into effect from 14.11.1994. But in the instance case, the accident admittedly occurred on MACA No. 538 of 2003 5 08.08.1994, i.e., prior to the said amendment. This being the position, even if the contention of the 1st respondent that he was travelling in the goods carriage accompanying the goods carried in the vehicle is accepted, it cannot tilt the balance in any manner, in so far as the accident was much prior to the said amendment. 10. In the above facts and circumstances, we find that the Award passed by the Tribunal fixing the liability upon the appellant/insurer is not correct or sustainable. As such, we set aside the Award and absolve the appellant/insurer, however making clear that the additional claimants, who are the legal heirs of the original first respondent (who subsequently passed away) can proceed against the owner and driver of the vehicle; for realisation of the due amount awarded by the Tribunal. The appeal is allowed as above. No cost. P.R. RAMAN, JUDGE P. R. RAMACHANDRA MENON, JUDGE dnc