IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 MACA.No. 604 of 2008(F) ---------------------------- OPMV.907/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): PETITIONER ------------------------ MURUGAN, SON OF VELU, AGED 36 YEARS VADAKKEDATH HOUSE, KOLANI, THODUPUZHA. BY ADV. SRI.N.ANILKUMAR RESPONDENT(S): RESPONDENTS ------------------------------------- 1. GINCE MATHEW, THADATHIL HOUSE PURAPPUZHA P.O., THODUPUZHA. 2. THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, NO.1, MATHEETHARA BUILDING BAKER JUNCTION, KOTTAYAM. ADV. SRI.A.R.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 604 OF 2008 = = = = = = = = = = = = = = = Dated this the 27th day of January, 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)907/04. The claimant sustained injuries in a road accident and he has been awarded a total compensation of Rs.17,000/- with a direction to realise it from the first respondent. The claimant has come up in appeal challenging the exoneration of the liability of the insurance company. It is contended that there may be a direction to the insurance company to deposit the amount and recover it from the owner. The said point has been dealt with elaborately by the Tribunal in paragraph 19 of the award. There was an attempt to the effect that the claimant as well the person who died in the accident were travelling in an auto rickshaw along with the goods and therefore they were covered under Section 147 of the M.V.Act. The Tribunal found that the driver of the goods carriage has been charge sheeted for carrying passengers in M.A.C.A. 604 OF 2008 -:2:- a vehicle in violation of the permit. Learned counsel for the insurance company also brought to my notice regarding the statement given which also does not indicate that they were travelling as the person accompanying the goods. The Tribunal also found that if there had been any goods in the vehicle it would have found a place in the scene mahazar but it is the other way as per Ext.A2. So from these materials the Tribunal came to a conclusion that there was no goods in the vehicle and the persons were travelling in the goods vehicle only as passengers. 2. If it is so what is the legal effect is the next question to be considered. Prior to the Amended Act of 1988 and up to amendment Act 54 of 1994 persons travelling in a goods vehicle were not covered even if they were accompanying the goods as the owner of the goods or representative of the owner of the goods. Or in other words prior to the amendment Act 54 of 1994 the provisions were in pari materia under the old as well as the new enactments. Only by virtue of the amended provisions a clause has been M.A.C.A. 604 OF 2008 -:3:- incorporated whereby no additional premium is necessary as a statutory policy covers the risk of persons travelling in a goods vehicle as the owner of the goods or representative of the owner of the goods. On a factual foundation and from the materials available the Tribunal held that they were only passengers and they did not come under the purview of S.147 of the M.V. Act. So there is no statutory coverage. Then in order to cover such persons there must be payment of additional premium. There is no such payment of additional premium. It is in that back ground the Apex Court in the decision reported in Asha Rani case, New India Assurance Co. Ltd. v. Asha Rani 2003 (1) KLT 165 as well as in Tilak Singh's case [United India Insurance Co. Ltd. v. Tilak Singh)2006 (2) KLT 884(SC) held that the status of such passengers will be that of the gratuitous passengers. When they are gratuitous passengers they are not covered under the terms of the policy and therefore they are outside the purview of the insurance contract. The direction to pay and recover arises in cases where the policy M.A.C.A. 604 OF 2008 -:4:- covers the risk of person but on account of the breach of policy conditions committed by the owner the insurance company is entitled to have the right to recovery. So far as this case is concerned there is no coverage under the policy for these persons at all and therefore a direction to pay the amount and get it recovered does not arise. The matter has been properly dealt with by the Tribunal in the light of the decisions referred to above and therefore the award does not call for any interference. Therefore the appeal is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/-