IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 MACA.No. 2409 of 2008() ----------------------- OPMV.912/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): 3RD RESPONDENT: ----------------------------- THE NATIONAL INSURANCE COMPANY LTD., P.B.NO.6, M.M.JUNCTION, KOLENCHERRY. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT AND R1 AND 2: ------------------------------------- 1. KHADEEJA, W/O.PAREED, PONNARIKKAL PARAMBAN HOUSE, MINIKAVALA, MAROTTIHODU, VENGOLA. 2. BINDU JOY, W/O.JOY, VALANKOTTU HOUSE, KUZHOOR, AIRAPURAM. 3. JOY, S/O.V.P.JOSEPH, VALANKOTTU HOUSE, KUZHOOR, AIRAPURAM. ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R2 SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR R2 SRI.N.RAJESH FOR R2 SRI.K.K.MOHAMED RAVUF FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... M.A.C.A.No.2409 OF 2008 ............................................. Dated this the 25th day of November, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Perumbavoor in OP(MV)No.912/2004. The claimant sustained injuries in a road accident and the Tribunal has awarded him a sum of Rs.92,680/=. Challenging the liability cast on the insurance company, it has come up in appeal before this Court. 2. Heard the learned counsel for the appellant as well as the claimant. The learned counsel for the insurance company would contend that the policy issued is only an Act only policy and, therefore, it does not cover a loading and unloading worker and secondly, even if premium is received for covering two employees, the compensation has to be limited as provided under the Workmen's Compensation Act. The learned Tribunal in para-10 of the award held that as per the policy conditions, the company has received premium for two employees and, therefore, the insurance company is totally bound to give the compensation. : 2 : M.A.C.A.No.2409 OF 2008 3. I am afraid that the said approach may not be proper, but on analysis, the facts would reveal that in a case of this nature even without additional premium being paid, the statutory liability envisaged under Section 147 (1)(b)(i) would apply to the facts of the case. The claimant is a lady. She cannot be an employee of the lorry for the reason that she may not be able to operate the lorry as a driver or a cleaner. She is a loading and unloading person. It is her case that the owner of the goods, who happens to be the owner of the lorry also, has transported the goods in the lorry and had sent her along with the lorry for the purpose of unloading the goods loaded in the lorry. It was at that time the accident took place. So, it has to be held that the claimant had a duel capacity; one, she was an employee of the owner and other, she was also a representative of the owner of the goods, who was transporting materials in the lorry. Just because she comes under two categories, the statutory fiction envisaged under the Motor Vehicles Act cannot be taken away. The provision, especially after the amendment Act 54 of 1994, had very clearly stated that : 3 : M.A.C.A.No.2409 OF 2008 statutory policy will cover the risk of any person including owner of the goods or his authorised representative carried in the vehicle. So, the present claimant was accompanying the goods loaded in the lorry as a representative of the owner of the goods for the purpose of unloading the same and therefore, she is exactly fitted within the clause which was introduced in Section 147 of the Motor Vehicles Act by amendment Act 54 of 1994. This position has been dealt with in New India Assurance Co. Ltd.v. Asha Rani [(2003 (1) KLT 165 (SC)] case considering the fact that under the old Motor Vehicles Act, 1939 and up to the amendment Act of 54 of 1994 the provision does not cover the owner of the goods or employee of the owner of the goods and only by statutory amendment to the section the persons were covered. Admittedly, here the accident had taken place on 22.4.2004 which is after coming into force of the amendment Act and, therefore, I find that the person namely the claimant is covered under the statutory obligation and even without additional premium Section 147 (1)(b)(i) covers such persons. : 4 : M.A.C.A.No.2409 OF 2008 4. Now I will consider the argument raised by the learned counsel for the insurance company. The learned counsel wants to highlight the fact that under the provisions of the Workmen's Compensation Act the claimant being an employee of the owner of the lorry, her claim is to be limited to that extent. As I stated earlier, here is a case where a person having two qualifications and she has got right to choose one of them to file the case. The learned counsel had relied on two decisions reported in National Insurance Co. Ltd. v. Prembai Patel II(2005 ACC 361 SC) and in New India Assurance Co. v. Parameswaran IV (2005 ACC 94 DB). In both these cases, the employee categorised and considered by the court was the driver of the vehicle concerned. As a driver of the vehicle his first qualification is that he is an employee of the vehicle and therefore he is an employee of the owner. But so far as this case is concerned, she is a lady who was deputed to travel in the lorry for the purpose of unloading the goods which fortunately and unfortunately belonging to the owner of the lorry as well. Therefore, when a person has chosen to come : 5 : M.A.C.A.No.2409 OF 2008 before the Motor Accident Claims Tribunal under Section 166 of the Motor Vehicles Act and as she is covered by the statutory fiction under Section 147, I find that the Tribunal was perfectly right in holding the insurance company liable though on reasons stated in this judgment. Therefore, the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE cl