IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 MACA.No. 1212 of 2007() ----------------------- OPMV.87/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------------------------------- SALEEM T.SEBASTIAN, S/O SEBASTIAN, AGED 33 YEARS, THEKKUMKATTIL HOUSE, KADANADU P.O., KADANADU VILLAGE. BY ADVS. SRI.T.V.GEORGE SMT.LINDA GEORGE RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. C.U.ANTONY, S/O VARU C.A, CHULLICKAL HOUSE, EROOR, TRIPUNITHURA. 2. GEORGE JOSE, S/O JOSE GEORGE, XXXV/1429, THATTARATHU LANE, PALARIVATTOM, COCHIN. 3. NATIONAL INSURANCE CO. LTD., REP. BY ITS BRANCH MANAGER, PALARIVATTOM BRANCH. ADVS. SRI.K.J.SAJI ISAAC FOR R2 DR.ELIZABETH VARKEY FOR R2 SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1212 OF 2007 --------------------------------- Dated this the 17th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Thodupuzha in O.P.(MV) No.87/2002. The claimant claiming to be a Supervisor of T&T Company, got involved in an accident. The lorry in which he was travelling turned turtle resulting in injuries to him. The learned Tribunal found that he was only a gratuitous passenger in a lorry and therefore he is not liable to be indemnified by the Insurance Company. It is against that decision the claimant has come up in appeal strongly supported by the owner of the vehicle. 2. The picture attempted to be projected is that the claimant as a Supervisor of T&T Company was authorised by the persons to accompany the cement in connection with the construction of a resort. After unloading cement, the lorry returned to Ernakulam. In the process, he want to get down at Kodanad for the purpose of taking money in order to pay the rental charges to the lorry driver. Unfortunately, on account of mist the accident took place. The Tribunal found that he has categorically stated in the F.I. Statement M.A.C.A. 1212/2007 -2- that he was travelling in the lorry to reach his house and therefore declined to accept his contention that he was the representative of the owner of the goods accompanying the vehicle. The learned counsel would contend that in the light of the decision of this Court reported in United India Insurance Co. Ltd. v. Suresh [2007 ACJ 262] that a person coming back after unloading goods will maintain the status of the representative of the owner of the goods till he reaches the destination. This matter came up before the apex court in the decision reported in United India Insurance Co. Ltd. v. Suresh K.K. and another [2008 ACJ 1741] , wherein the apex court disposed of the said matter on a point that, in a goods auto carriage which had only one seat to carry the driver, another person was accommodated which amounts to violation of the conditions and therefore found that the Insurance Company is exempted from the liability. In that case the apex court did not lay down the propositions, but in para 10 of the judgment it is mentioned “the High Court therefore may be correct that the owner of the goods would be covered in terms of the said profession”. The division Bench of this court considered this question under Section 147, regarding the owner or the representative of the owner and M.A.C.A. 1212/2007 -3- not the goods. If a person comes back in the same vehicle to reach destination from where he has loaded goods, he can be termed to be a representative owner of the goods. It is a matter which requires factual analysis. 3. From the materials produced it is seen that he is an employee of T&T company. It is also seen that he has boarded the lorry to come back to his place of residence. But his version is that he wanted to get down at his house for the purpose of taking money in order to pay the rental charges to the lorry driver. But one thing that has to be proved in a case of this nature is, whether he accompanied goods at the instance of the owner from the place where it is loaded. Being a company, there must be certainly documents to prove the same. It can be seen that the lorry reaches the destination at about 7 O'Clock and leaves back at 11 O'Clock. Suppose he had travelled in that lorry to unload the goods and has to come back to his original place under which circumstances his contention will have some force and effect. So if he is able to establish by documentary evidence that he was travelling in the lorry which was loaded with cement as a representative of the Company, he may be covered under Section M.A.C.A. 1212/2007 -4- 147 of the Motor Vehicles Act. Certainly the other explanations requires consideration by the court. The learned counsel for the appellant would contend before me that if an opportunity is given, he will be able to establish the same. Being a beneficial legislation and considering the factums, I do not want to throw out the claim on a mere technical ground. I am inclined to grant an opportunity to the claimant to establish the factum of his entitlement under the provisions and principles of law. Therefore I set aside the award and remit back the case to the Tribunal with a direction to permit to the parties concerned to adduce both documentary as well as oral evidence in support of their respective contentions and then dispose of the matter after deciding the status of the claimant in the lorry and also in accordance with law. Parties are directed to appear before the Tribunal on 29.12.2008. M.N. KRISHNAN,JUDGE vkm