IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 MACA.No. 3 of 2010() ------------------------------ OPMV.1292/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/3RD RESPONDENT ----------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., THIRUVANANTHAPURAM. REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT/CLAIMANT/RESPONDENTS/RESPONDENTS 1 & 2; ---------------------------------------------------------------------------------------------- 1. SELVARAJ, S/O.ANTONY, VEDAYANTENADA PURAYIDOM, PALLOM, PULLUVILA P.O., KARUMKULAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 2. SOMAN. B., SANTHOSH BHAVAN, KARUMKULAM, PUTHIYATHURA P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 3. MURUKAN, S/O.BHASKARAN, KAYYALAVALANJI VARUTHATTU PUTHEN VEEDU, KAZHUVOOR, KANJIRAMKULAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DIST. R2 BY ADV. SRI.M.R.SARIN. R3 BY ADV. SRI.SANTHEEP ANKARATH, SRI.V.C.MADHAVANKUTTY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2010, ALONG WITH MACA NO. 4 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs MACA.No. 3 of 2010 ORDER ON I.A. NO.4/2010 IN M.A.C.A. NO.3/2010 DISMISSED 22/12/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs M.N. KRISHNAN, J. ........................................... M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 ............................................. Dated this the 22nd day of December, 2010. JUDGMENT All these appeals are preferred by the insurance company against the award of the Claims Tribunal Neyyattinkara in OP (MVNos.1292/04,1250/04,1251/04, 1252/04, 1253/04, 1254/04, 1261/04,1294/04 and 1295/2004. 2. The brief facts that require consideration in these appeals are that it is the case of the claimants that they had hired a vehicle and was travelling in the vehicle along with their goods for the purpose of fishing and therefore they were owners of the goods accompanying the goods and therefore they are statutorily covered under Section 147(1) (b)(i) of the Motor Vehicles Act. 3. The insurance company would contend that those persons are not covered for the reason that they were all travelling in large numbers and they were not owners of the goods and they were only gratuitous passengers and therefore they are not liable to be covered. The insurance company also would contend that the policy covers the risk : 2 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 of two persons as employees and as admittedly the claimants are not the employees of the insured, they are not liable to indemnify them. 4. The learned Tribunal on a consideration of the materials held that the persons were travelling as the owners of the goods carried in the vehicle. Since there is a condition in the policy to cover three persons, three of such persons can be covered and thereafter applied the principles of National Insurance Co. Ltd. v. Anjana Shyam [(2007 (3) KLT 993 (SC)] and directed the insurance company to satisfy the highest of the three awards in proportion of all the claims and cast the rest of the liability on the owner of the vehicle. 5. The first point to be considered is whether the policy covers by virtue of payment of premium of these persons. Admittedly they are not the employees of the insured. So as employees of the insured, they will not get any coverage and that point has to be answered in favour of the insurance company. 6. Then the next point is regarding the coverage under Section 147(1)(b)(i) which reads as follows: : 3 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 “Against any liability which may be incurred by him in respect of the death or bodily (injury to any person, including owner of the goods or his authorised representative carried in the vehicle) or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place”. Section 147(1)(b)(i) was incorporated by the amendment Act 54 of 1994 which came into force on 14.11.1994. The coverage of the owner of the goods or representative of the owner of the goods carried in the vehicle was considered by the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Asha Rani (2003 (1) KLT 165) and the Supreme Court held that under the provisions of the old Motor Vehicles Act and till the amendment of the Motor Vehicles Act by Act 54 of 1994, such persons were not statutorily covered. But the Supreme Court made it clear that those persons will be covered by virtue of the amended provision under Act 54 of 1994. 7. The next point argued by the learned counsel for the insurance company is that they were only gratuitous passengers. I am afraid that I cannot accept that contention for the reason that these nine persons appear to be have : 4 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 jointly hired a vehicle for the purpose of proceeding to the place of fishing and they were travelling with their nets etc and therefore they were travelling in the lorry along with their goods. The question to be considered is whether all such persons can be covered under Section 147(1)(b)(i) of the Motor Vehicles Act. I may refer to the decision of the Himachal Pradesh High Court reported in Oriental Insurance Co. Ltd v. Mahaswari (2006 (3) TAC 565) wherein it was a case where 52 persons were carried in a truck which met with an accident, out of which 18 died. The said court held that in the light of the definition of the 'goods carriage' etc insurance company cannot be fastened with the liability. 8. The next question to be considered is whether all these persons can be roped in as owners of the goods. It has to be specifically remembered that Section 147(1)(b)(i) very carefully uses the word injury to any person including owner of the goods or his authorised representative carried in the vehicle. So what is contemplated under this section is to cover one person who can be either the owner or the representative of the owner. The section does not : 5 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 contemplate the situation where number of persons to be carried in a goods vehicle. It is basically for the reason that in a goods carriage, normally over and above the driver, there will be an employee who will be proceeding. Capacity of the cabin will be limited. Therefore in such cases, the legislature in its wisdom thought that the person namely the owner or his representative can be covered. The legislature was very careful when it uses the word owner or the representative of the owner of the goods. It never incorporated the word owner or the representatives of the owner of the goods. Therefore it was only a singular person that was contemplated to be covered under the provisions of the Motor Vehicles Act under Section 147(1)(b)(i). 9. Therefore even if large number of persons travel in a vehicle taking their goods, all of them cannot be treated as persons covered under the provisions of the Act. So in such a situation, I hold that the coverage of three persons cannot be permitted as done by the Tribunal because the coverage is for the employees of the insured who are basically not these persons and owner or representative of the owner of the goods can be one and only such person can : 6 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 be covered. Therefore the contention of the claimants that all the persons travelling in the cabin have to be covered cannot be accepted in the light of the singular used in Section 147(1)(b)(i). So the coverage of three persons as owner could not be applied. The principle laid down in Anjana Shyam's case can be extended and applied to the case by taking the highest one award passed in these batch of cases and then directing the insurance company to pay the amount in proportion and thereafter cast the entire liability on the owner of the vehicle. So all these appeals are disposed of as follows: The Motor Accidents Claims Tribunal is directed to take the highest of the award amount that is Rs.50,632/= and work out the proportion in accordance with Anjana Shyam's case and thereafter direct the owner of the vehicle to pay the balance compensation as envisaged by law . M.N. KRISHNAN, JUDGE. cl : 7 : M.A.C.A.NOS.3,4,5,6,8,11,12,13 & 14 OF 2010 M.N. KRISHNAN, J. ........................................... A.S.NO.883 OF 1996 ............................................. 13th day of August, 2010. J U D G M E N T