IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 MACA.No. 2313 of 2007() ----------------------- OPMV.182/2001 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): 3RD RESPONDENT: ------------------ THE NEW INDIA INSURANCE CO. LTD. REGIONAL TOWERS, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): RESPONDENTS 1 AND 2 AND PETITIONER: -------------------- 1. THE ADMINISTRATOR, THE SALVATION ARMY EVANGELINE, BOOTH LEPROSY HOSPITAL, VARIKOLI P.O. PUTHENCRUZ. 2. JAMES, S/O.CHACKO, RESIDING AT DO, DO. 3. T.J.SIMON @ SAIMON, S/O.JOHN, THE SALVATION ARMY EVANGELINE, BOOTH LEPROSY HOSPITAL, VARIKOLI P.O., PUTHENCRUZ AND NOW RESIDING AT KALARICKAL HOUSE, SOUTH PARAVUR P.O. UDAYAMPEROOR. BY ADV. M/S. SMT.ELIZABETH MATHAI IDICULLA FOR R.1 SRI.MOHAN IDICULLA ABRAHAM FOR R.1 SRI.MARTIN D.ALUMKARA FOR R.1 SMT.PUSHPY B.MURICKEN FOR R.1 BY ADV.M/S. SRI.R.SUDHISH FOR R3 SMT.M.MANJU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.A.C.A. No.2313 of 2007 ------------------------------- Dated this the 7th September, 2009 J U D G M E N T Raman, J. This is an appeal by the Insurance Company against the award passed in O.P.(MV) No.182 of 2001, on the file of the Motor Accident Claims Tribunal, Ernakulam, with whom the vehicle in question, viz., Jeep, bearing registration No.KL-7B 1183 was insured. 2. The claimant preferred the claim under Sections 166 and 140 of the Motor Vehicles Act, seeking compensation for personal injuries sustained by him. The accident occurred on 12.4.1999, while he was travelling in the jeep from west to east along the Muvattupuzha – Thiruvankulam National Highway. The vehicle was driven by the second respondent and the first respondent was the owner of the jeep. The accident occurred when the jeep happened to overturn, and the claimant, 3rd MACA.No.2313 of 2007 2 respondent herein, sustained serious injuries. He was admitted to the hospital and treated as an inpatient for three days from 14.4.1999 to 17.4.1999, and later from 20.4.1999 to 8.5.1999 in another hospital. Thereafter also, he underwent treatment as outpatient. The incident is stated to have occurred as a result of rash and negligent driving by the second respondent. He claimed in all an amount of Rs.1,50,000/= as compensation. 3. In the joint written statement filed by respondents 1 and 2, it was contended that the vehicle was driven by one Sri.Jolly, and he was not made a party, and, therefore, the petition itself is bad for non-joinder of necessary parties. It is stated that claimant has no fixed income or employment; that the second respondent who was the Administrator of the hospital was not expected to drive the vehicle, particularly, when there was an official driver; that there was a valid policy of insurance with the third respondent, and hence submitted that the amount claimed was exorbitant. MACA.No.2313 of 2007 3 4. The third respondent, Insurance company, in the separate written statement admitted the policy, but denied the liability. According to the them, police has registered the case only after one year of the accident. Further, at the time of occurrence, the second respondent was not holding a valid driving licence to drive the jeep. The first respondent has entrusted the vehicle with the second respondent fully knowing that the second respondent was not authorised to drive the vehicle. Later he also filed an additional statement stating that the vehicle was insured under a private car comprehensive poicy, and, therefore, risk of the passenger travelling in the private car is not covered by the policy. 5. The Tribunal framed necessary issues. The evidence consists of Exts.A1 to A10 marked on the side of the claimant and Ext.B1 marked on the side of the third respondent, Insurer. There was no representation for respondents 1 and 2, at the time of trial. MACA.No.2313 of 2007 4 6. Though party respondents were heard and by the impugned award, the accident was found true, it was also found that the claimant sustained injuries since the jeep had capsized on the side of the road. It is stated that there was no mechanical defect to the jeep. The inference drawn therefrom was that the accident occurred due to rash and negligent driving by the second respondent. The expenditure incurred for treatment was also supported by bills. The claimant was 52 years old and according to him, he was getting a monthly income of Rs.3500/=. No documentary evidence was also produced regarding the occupation or income. Therefore, the court notionally fixed his income as Rs.2000/= and multiplier of 11 was adopted. 7. With reference to the liability of the Insurance Company, the appellant disowned its liability on two grounds, viz., the second respondent did not possess a valid driving licence and the Insurance Company has no liability under Ext.B1 policy to cover the risk of a passenger. Going by the terms MACA.No.2313 of 2007 5 contained in Ext.B1, it was specifically found that the insurance company has no liability to indemnify the insurer and no amount has been collected to cover the risk of a passenger. As against this finding, none has appealed. The Tribunal, despite the above finding that the policy does not cover the liability to indemnify the insured, being a co-passenger, and even after finding that the claim as against third respondent is not sustainable, still directed the appellant to deposit an amount of Rs. 1,31,675/= being the award amount, with liberty to recover the same from the first respondent. On the aforesaid finding, being aggrieved, the Insurance Company has filed this appeal. 8. We have heard the argument on both sides. In the light of the specific finding based on Ext.B1 policy that the appellant is not liable to pay any compensation to the injured, since the liability of co-passenger is not covered, as per the terms of the policy, further direction of the Tribunal to deposit the amount is not warranted, when the passenger is not a third party. When the liability of the insurance company is MACA.No.2313 of 2007 6 contractual and having found that the policy issued in this case does not cover the liability of a co-passenger, to drag the insurance company into a further litigation to recover the amount after depositing the same from the owner is clearly wrong. The Insurance Company, being a public authority, should not have been dragged to such a proceeding by expending public money, when admittedly they are not liable to pay any compensation to the injured. 9. In the above circumstances, the direction as against the appellant to deposit the amount is deleted. The award is confirmed in all other respects. The appeal is allowed with cost to be paid by the first respondent, owner. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.