IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 MACA.No. 1407 of 2004(B) --------------------------------- OPMV.1354/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/3RD RESPONDENT : -------------------------------------- THE ORIENTAL INSURANCE CO.LTD., PALAKKAD, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/CLAIMANT & RESPONDENTS 1 &2 : -------------------------------------------------------------- 1. SAYED MOHAMMED, S/O.MOOSA, THODUKAD HOUSE, KALLOOR, P.O., MANKARA, PALAKAKAD. 2. E.K.USEPH, S/O.KUNHU MARAKKAR, RESIDING AT INNICKAL HOUSE, KALLUR P.O., PALAKKAD. 3. V.M.IBRAHIM, S/O.V.S.MUTHU, RESIDING AT VALI PARAMBU ODANUR, PARALI, PALAKKAD. ADV. SRI.K.M.KURIAN - R2 & R3 SRI.P.VIJAYAKUMAR - R2 & R3 SRI.A.R.GANGADAS - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 1407 of 2004(B) ORDER ON I.A.NO.3284 OF 2004 IN M.A.C.A.NO.1407 OF 2004 DISMISSED 28.10.2008 SD/- M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N.KRISHNAN, J. -------------------------- M.A.C.A No. 1407 OF 2004 --------------------- Dated this the 28th day of October, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Palakkad, in OP(MV) 1354/97. The claimant sustained injuries in the accident and the Tribunal awarded him a compensation of Rs.60,050/- with 6% interest and directed the Insurance Company to pay the amount and then realise it from the owner of the vehicle. It is against that decision, the Insurance Company has come up in appeal. 2. The question to be considered is whether the claimant sustained injuries in a road accident while he was walking along the road and hit by a tractor or whether he fell down from the mudguard of the tractor and sustained injuries. If the answer is that he sustained injuries while he was a pedestrian then necessarily he will be a third party who is entitled to be indemnified by the Insurance Company. Suppose if he had fallen from the mudguard of a tractor then the question to be considered is what will be the liability of the Insurance Company. 3. Let me first consider the factual matrix to understand what is the reality regarding the status of the person. It is true that the claimant has filed the claim application on the ground that he sustained injuries while he was walking along the road. But immediately after the accident, MACA No. 1407/04 2 first information statement was given wherein there is a clear candid recital to the effect that the claimant fell down while he was travelling in the mudguard of the tractor. The police after due investigation have laid the charge sheet against the driver of the tractor also and came to the conclusion that the injured was travelling on the mudguard of the tractor. The belated attempt to convert it into an accident which occurred while walking was not accepted by the Tribunal. I also feel that in the light of the overwhelming documentary evidence relied on by the claimant himself such a contention cannot be accepted. Therefore, I confirm the finding that the claimant was only a traveller in the mudguard of the tractor. 4. Now the second question to be considered is whether the Insurance Company is liable to pay the amount. It has been repeatedly held by the Apex court that tractor is not a goods carriage. Secondly, in order to get a coverage under section 147(1) of the Motor Vehicles Act, the vehicle should be a goods carriage and the person travelling in the goods must be in the capacity of the owner of the goods or representative of owner of the goods accompanying the goods. Nobody has got a case that he was accompanying the goods but was only a traveller on the mudguard of a tractor. Therefore, there is no statutory coverage for the claimant. When it is so, the policy totally exonerates the Insurance Company from the liability. The status of the person travelling in the MACA No. 1407/04 3 mudguard is that of a gratuitous passenger not covered by the policy. Therefore, there cannot be any direction to the Insurance Company to pay the amount and get it reimbursed from the owner. Therefore, that finding of the Tribunal has to be set aside and I do so. In the result the appeal is disposed of as follows: The finding of the Tribunal that the claimant was travelling on the mud guard of the tractor is confirmed. The award of the Tribunal directing the Insurance Company to pay the amount and get it reimbursed from the owner is set aside and the Insurance Company is totally exonerated from the liability. The claimant is entitled to realise the amount from respondents 1 and 2 in the claim petition jointly and severally. Respondents are given three months' time for making the payment. M.N.KRISHNAN, JUDGE vps MACA No. 1407/04 4