IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 MACA.No. 713 of 2003() ---------------------- OPMV.523/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT(S): 3RD RESPONDENT IN THE OP(MV): ------------------------------------------------------------------------------ THE MANAGER, NATIONAL INSURANCE COMPANY LTD., UTHRADAM BUILDINGS, 1ST FLOOR, KOTTARAKKARA, REPRESENTED BY ITS ASSISTANT MANAGER, MOTOR THIRD PARTY CLAIMS SECTION, AJAY VIHAR, M.G. ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENT(S): ---------------------------- 1. SAJU P.PAU, S/O.P.M.PAULOSE, PLAPPALLIL HOUSE, IKKERNADU SOUTH, KINGINIMATTOM, KUNNATHUNADU TALUK, KOLENCHERRY. *2. JAYAKUMAR M.K., KARACKAL HOUSE, KOCHANDY, ANGAMOOZHY P.O., PATHANAMTHITTA. (D E L E T E D) * THE NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DTD. 22/09/2009 IN I.A.NO.2684/2009. 3. C.SIVANANDAN, S/O.CHELLAPPAN, POOVATHUTHOTTATHIL VEEDU, KAYILA MYLODU P.O., POOYAPPALLY, KOTTARAKKARA, KOLLAM DISTRICT. R1 BY ADV. SRI.SAJEEV KUMAR K.GOPAL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON 09/11/2010 DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 713 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 9th day of November, 2010 JUDGMENT Basheer, J. The appellant is the insurer of a goods vehicle bearing registration No. KL2A/3411. This vehicle capsized on October 16, 1993. About 29 passengers were being carried in the vehicle, as is revealed from the police records. All those passengers who suffered injury had filed claim petitions before the Motor Accidents Claims Tribunal, Pathanamthitta, claiming compensation from respondents 1 and 2 who are owner and driver of the vehicle, apart from the appellant, the insurer of the said vehicle. 2. The Tribunal passed the impugned award, granting a compensation of Rs.2,88,000/- with 9% interest per annum thereon in favour of respondent No.1 herein and directed the appellant to pay the same. The said award is under challenge in this appeal, primarily on the ground that the claimant being a gratuitous passenger and hence the Tribunal ought not have directed the appellant to indemnify the owner of the vehicle. 3. When this appeal came up for consideration, it is submitted by the learned counsel for the appellant that the issue is : 2 : no more res integra in view of the decision of the Supreme Court in New India Assurance Company Ltd. V. Asharani (JT 2002(10) SC 162). 4. Sri.Lal George has invited our attention to some other decisions also on the point ( National Insurance Co. Ltd. v. Ajit Kumar (2003 (3) KLT 688 (SC), Oriental Insurance Co. Ltd. v. Brij Mohan & Ors. ((2007) 7 SCC 56 and New India Assurance Co. Ltd. v. Vedwati (2007 (2) KLT 219 (SC)) ) 5. A Division Bench of this Court in New India Assurance Co. Ltd. v. Alekutty Antony (2009(4) KLT 130) has also followed the catena of decisions of the Apex Court while holding that the owner of the goods means only the person who travels in the cabin of the vehicle. The Division Bench has referred to some other decisions rendered by the Apex Court on the point in National Insurance Co. Ltd. v. Bommithi Subbayamma (2005 ACJ 721) and National Insurance Co. Ltd. v. Cholleti Bharatamma & Ors. ((2008) 1 SCC 423). Therefore the position seems to be well settled as of now that a gratuituous passenger travelling in the goods vehicle will not be covered under the policy. 6. In M.F.A. No.1370 of 1999, which arose from : 3 : another award passed by the same Tribunal in connection with the same accident, a Division Bench of this Court allowed the appeal filed by the same Insurance Company and held that in view of the decision in Asharani's case (Supra) a gratuitous passenger in a goods vehicle would not be entitled to get compensation from the insurer. Similar view has been taken by this Court in other connected claim petitions also. In that view of the matter, we are inclined to allow this appeal. We do so. 7. Therefore, the impugned award as against the appellant is set aside. However, it will be open to the claimants to recover the award amount form the owner or driver of the vehicle in question. The appeal is allowed as above. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.