IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 MACA.No. 1330 of 2008() ----------------------- OPMV.359/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT ----------------------- NATIONAL INSURANCE COMPANY LIMITED, THODUPUZHA NOW REPRESENTED BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): PETITIONERS& RESPONDENTS 1 & 2: ---------------------------------------------------------------- 1. JAFARKHAN, S/O.SYED MUHAMMED, THAIPPARAMBIL HOUSE, THODUPUZHA P.O. 2. N.K.HAMEED, S/O.KOYAKUTTY, NADUPARAMBIL HOUSE,KARIMANNOOR P.O, THODUPUZHA. 3. SHABEER.T.A,S/O.ABDUL KAREEM, THAIPPARAMBIL HOUSE, UDUMBANNOOR P.O, THODUPUZHA. ADV. SRI.T.V.GEORGE FOR R1 SRI.JIMMY GEORGE (THADATHIL) FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1330 OF 2008 = = = = = = = = = = = = = = = Dated this the 1st day of December, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)359/01. The claimant, while travelling as the owner of the goods accompanying the goods sustained injuries in a road accident and the Tribunal awarded him a compensation for the injuries but refused to grant compensation to the articles. The matter came up before this Court. It was remanded and thereafter the Tribunal held that a damage of Rs.20,000/- had been caused and also further found that the insurance company is liable to pay the amount. It is against that decision the insurance company has come up in appeal. 2. The learned counsel for the insurance company had highlighted the matter on two grounds, (i) that the person travelling along with the goods in an Act only policy has only the statutory coverage of S.147, being not a third party and therefore the Tribunal really will not get M.A.C.A. 1330 OF 2008 -:2:- jurisdiction to decide the question with respect to the goods of that person which is carried in a vehicle. The second contention raised is that there is a specific clause excluding the liability of the insurance company in the policy which reads as follows. “The company shall not be liable in receipt of damage to property belonging to or held in trust by or in the custody of the insured or a member of the insured's household or being conveyed by the insured vehicle.” 3. Let me first consider about the first point. If really the owner of the goods had been considered as a third party there was no necessity for the legislature to include a specific clause by amending the Act of 1988 by Act 54 of 1994. It was only by virtue of that clause the person who was travelling in a goods vehicle as the owner of the goods or a representative of the owner of the goods was covered by an an Act only policy issued in the case. This position has been fairly well settled in Asha Rani case, New India Assurance Co. Ltd. v. Asha Rani 2003 (1) KLT 165. In M.A.C.A. 1330 OF 2008 -:3:- Asha Rani case the Hon'ble Supreme Court considered the impact of the provisions of 1939 of the M.V.Act. The provisions of the M.V.Act 1988 prior to the amendment by Act 54 of 1988 and later by virtue of the amendment Act 54 of 1994. The Hon'ble Supreme Court clearly laid down that 'any person' included in the two enactments of 1939 and 1988 prior to the amendment does not cover a person who is travelling along with the goods or the representative of the owner of the goods. If really the conceptual consideration was whether that person will be a third party or not certainly the amendment to the Section itself would not be necessary for the reason an Act only policy covers the risk of a third party. So the indication of the decision in Asha Rani case is that only by virtue of the specific amendment to the Act 54 of 1994 two groups of persons are roped into the statutory policy, that is, the owner of the goods and the representative of the owner of the goods. Therefore a person who is travelling as an owner of the goods cannot be considered as a third party. When he cannot be considered M.A.C.A. 1330 OF 2008 -:4:- as a third party. Goods carried by him in the vehicle cannot be termed as the goods belonging to a third party so as to attract the coverage under the provisions of the M.V.Act. So far as S.165 of the M.V.Act is concerned it only gives power to decide the question of determining the compensation question, the injuries sustained by a person and specifically damage caused to the property of a third person. Since it will not be categorized as a property belonging to a third person necessarily I am afraid that the Tribunal will not have jurisdiction to decide that issue at all. 4. Secondly the exclusion clause. The reasons given by the learned Tribunal to discard the contentions in the clause appears to be totally unsatisfactory. One has to be borne in mind that original will be always with the insured and not with the insurer. When a policy copy or conditions of the policy copy are produced and a person is examined and the person who is in receipt of the original does not come before the Court then it may not be possible to hold at the instance of a party who is not a party to the contract that it M.A.C.A. 1330 OF 2008 -:5:- is not a true copy. So I do not agree with that finding and therefore set aside the same. When that is set aside and the conditions is read then there is a specific exclusion with respect to the conveyance of goods and it is all supported by decisions. The Karnataka High Court in the decision reported in Oriental Insurance Co. Ltd. V. K. Buden Sab and another 2002 ACJ 139 held that owner of the goods is not a third party; goods are carried under a contract etc. etc. It is also held that the owner of the goods is not entitled to claim compensation. It is also to be stated that the very same exclusion which I have referred to, came up for consideration before the Court and the Court held in favour of the contention of the insurance company in that case. In the decision reported in Ahmed Ahaiyat Saiyed and another v. Ibrahim Bhanchal Shah and another (1985 ACJ 83). There also the Gujarat High Court held that the accident caused to goods vehicle resulting in death of goats and sheep carried in it, the insurance company, not liable for the risk to the goods of hirer of the goods. I think these are M.A.C.A. 1330 OF 2008 -:6:- sufficient to indicate that the insurance company cannot be saddled with the liability. From these discussions I hold the Tribunal does not have jurisdiction to decide the damage, the exclusion clause prevails and therefore the appeal is allowed and the claim petition so far as it relates to the claim of damages with respect to the goods is negatived. 5. If any amount towards damages to goods is in deposit let it be reimbursed to the insurance company on proper application. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-