IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 MACA.No. 1038 of 2007(C) ------------------------------------- [O.P(MV).NO.1284/1997 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA] .................... APPELLANT/PETITIONER: ------------------------------------- KOSHY, PUTHUPPALLITHEKKETHIL, THRIPPERUMTHURA P.O, CHENNITHALA. BY ADVS. SRI.K.HARILAL, SRI.R.GOPAN. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. SHAJAHAN, KANDISSERIL, KURATTISSERIL, MANNAR P.O., 2. UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KOTTAYAM. R2 BY ADV. SRI.S.MAMMU. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN, J. ------------------------- M.A.C.A. No.1038 of 2007 ------------------------------------- Dated this the 4th day of October, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Mavelikkara in OP(MV) No.1284/1997. The claimant would submit before the court that while accompanying his load of fish in an auto-cargo carrier driven by the first respondent, it turned turtle, resulting in sustainment of injuries to him. The owner-cum-driver remained exparte and the insurance company would contend that he was an unauthorised passenger in the goods vehicle, which was meant for not carrying passengers. The Tribunal on a consideration of the materials had dismissed the case. It is against that decision, the claimant has come up in appeal. 2. Heard the learned counsel for both sides. At the outset, I may like to state the Tribunal has not approached the matter in the proper perspective. Irrespective of the question whether the insurance company is liable or not suppose a person sustained injuries in a motor vehicle accident, certainly, owner and driver would be liable, provided there is negligence on their part. The Tribunal most probably got confused with the insurance company and M.A.C.A. No.1038 of 2007 2 dismissed the case. The law on the point is as follows: It has been held that only by virtue of the amendment Act 54 of 94 Section 147 has embodied and included the owner of t the goods or the representative of the owner of the goods to be covered under a statutory policy under Section 147 of the Motor Vehicles Act. In New India Assurance Company Limited Vs. Asha Rani (2003 (1) KLT 165), the Hon'ble Supreme Court made it clear that prior to the amended Act 54 of 94, such persons are not covered by the Act. Here the incident had taken place on 01.08.1997, which is subsequent to Act 54 of 94. Therefore, if the claimant is able to establish that he was travelling in a goods carrier, which was designed to carry a passenger and that he was accompanying the goods as an owner or representative of the owner of the goods, he will be covered by the policy. In United India Insurance Company Vs. Suresh (2008(4) KLT 552), The Hon'ble Supreme Court in paragraph 13 held as follows: "In any view of the matter in a three wheeler goods carriage, the driver could not be 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. Violation of the condition of the contract of insurance, therefore, is approved." M.A.C.A. No.1038 of 2007 3 3. So in order to decide the case the queston whether the accident had taken place on rash and negligent driving of the owner-cum-driver has to be found out. Secondly, it has to be found whether the claimant was the owner of the goods or a person accompanying the goods as the representative of the owner of the goods. To decide this question whether there were any goods also has to be considered. Then, it has to be found whether the permit conditions and the vehicle is desinged in such a way that it permits to carry a person. If all these ingredients are established then only the insurance company can be made liable. But if negligence alone is established then the claimant will be entitled to get compensation from the owner-cum-driver in this case. Therefore, the award under challenge is set aside and the appeal is allowed and the matter is remitted back to the Tribunal for fresh trial. For the said purpose, all concerned shall be permitted to produce the documentary or oral evidence in support of their contentions and the matter be disposed of in accordance with law. The parties are directed to appear before the Tribunal on 10.11.2010. M.N.KRISHNAN, JUDGE ln.