IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 MFA.No. 231 of 2002(E) ---------------------- OPMV.1605/1992 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/3RD RESPONDENT: -------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, KOTTAYAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 2: ---------------------------------------------- 1. K.G.VIJAYAN, D/O.GOPALAN, KOIKKACHIRA, KUMARAKOM, KOTTAYAM.(DIED.LRS. IMPLEADED) 2. K.G.KUTTAI, S/O. GOPALAN, MANALEPARAMBIL HOUSE, KUMARAKOM, KOTTAYAM. 3. BABU JOSEPH, S/O. JOSEPH, KOYALCHIRA HOUSE, KUMARAKOM, KOTTAYAM. ADDL.RESPONDENTS: 4.OMANA,W/O.K.G.VIJAYAN,KOIKKACHIRA HOUSE, KUMARAKOM, KOTTAYAM. 5.CHELLAMMA,MOTHER OF K.G.VIJAYAN, KOIKKACHIRA HOUSE, KUMARAKOM, KOTTAYAM. 6.AJAYAN,S/O. DO. DO. 7.AJITHA, D/O. DO. DO. ADDL.RESPONDENTS 4 TO 7 ARE IMPLEADED AS THE LRS OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 10.1.2007 IN I.A.65/07. BY ADV. SRI.DILIP MOHAN FOR R2 SRI.M.P.MADHAVANKUTTY FOR R4 TO R7 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.1584/2002 IN MFA.231/2002 DISMISSED. 25.2.2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ K. PADMANABHAN NAIR ,J. ------------------------------------------------- M.F.A.No.231 of 2002 ------------------------------------------------- Dated, this the 13th day of November, 2007 REFERENCE ORDER This is an appeal filed by the third respondent Insurance Company challenging an award passed by the Tribunal by which the appellant was fastened with the liability to pay compensation awarded to the deceased first respondent. Deceased first respondent who was a worker in a toddy shop was travelling in a goods autorickshaw on 3.4.1992. The vehicle capsized and he sustained injuries. He claimed an amount of Rs.50,000/- as compensation alleging that he was accompanying firewoods transported in the goods autorickshaw to the toddy shop. First respondent was the owner and second respondent was the driver of the vehicle. The appellant was the insurer. It was averred that the accident occurred due to the negligence of the second respondent driver. Tribunal found that the accident occurred due to the negligence of the second respondent and the deceased first respondent was entitled to get a compensation of Rs.45,200/-. The award was passed on 8.6.2001. This appeal was filed on 30.11.2001. At the relevant period the principle laid down in the decision reported in New India Assurance Co.Ltd. v. Satpal Singh (2000 (1) KLT 95(SC)) was governing the field. Subsequently in New India Assurance Co. Ltd. v. Asharani((2001) 6 SCC 724) also followed the decision in Satpal Singh's case (supra). Correctness of the decision in Satpal Singh's case (supra) was doubted and matter was MFA No.231/2002 -: 2 :- referred to a Three Judge Bench of the Supreme Court (New India Assurance Co. Ltd. v. Asha Rani (2003(1) KLT 165(SC)). The Apex Court held that the insurer is not liable to indemnify the insured in a case in which the passenger in a goods vehicle sustains injuries. Matter was considered by the Apex Court in National Insurance Co. Ltd. v. Baljit Kaur (2004(1) KLT 938 (SC)) in which it was held that in view of the clarification of the legal point the insurer shall satisfy the award and recover the same from the owner of the vehicle. Matter was considered in Salija v. Unnikrishnan (2004(2) KLT 818) by a Division Bench of this Court in which it was held that in accidents occurring prior to the decision in Asha Rani's case (2003 (1) KLT 165(SC)) even though the owner of the goods or his authorised agents are not covered by the policy the insurer shall pay the compensation awarded and recover the amount from the insured in execution of the award. 2. Adv. Shri Mathews Jacob, learned counsel appearing for the appellant relying on the decision of the Apex Court reported in M.V.Jayadevappa v. Oriental Fire & Genl. Ins. Co.Ltd. (2005 ACJ 1801) has argued that a Three Judge Bench of the Supreme Court had held that the insurer cannot be saddled with the liability in such a case. In Baljit Kaur's case, decided on 6.1.2004, a Three Judge Bench of the Apex Court held that the insurer shall pay the amount and recover it from the owner. Salija's case (supra) was decided on 27.5.2004. Jayadevappa's case(supra) was decided on 14.12.2004. The principle laid down in MFA No.231/2002 -: 3 :- Baljit Kaur's case was not brought to the notice of the Bench which heard Jayadevappa's case. The question whether insurer shall deposit the compensation and then recover from the owner was not considered in that case. In view of the apparent conflict regarding the liability of the insurer in the above referred decisions, I am of the view that the matter is to be heard and decided by a Bench of Two Judges. For that purpose the case is to be heard and determined by a Bench of two Judges. In the result, case is adjourned for being heard and determined by a Bench of Two Judges. Office is directed to place the records before the Hon'ble Chief Justice for appropriate orders. K. PADMANABHAN NAIR, JUDGE. cks MFA No.231/2002 -: 4 :- K.PADMANABHAN NAIR, J. M.F.A.No.231 of 2002 REFERENCE ORDER 13th November, 2007.