IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 MACA.No. 51 of 2005() ------------------------------- OPMV.1653/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S):PETITIONER ----------------------- BIJU, S/O.GOPALAN, AGED 30 YEARS, RESIDING AT VETTARKUNNEL HOUSE, MUTHAKODAM P.O., PAZHUKKAKULAM KARA, THODUPUZHA VILLAGE. BY ADVS.MR.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SMT.A.S.BEENU MR.M.V.BIPIN RESPONDENT(S): RESPONDENTS ---------------------------- 1. N.SIVAN, S/O.NARAYANAN, MANALIL HOUSE, VALAYANCHIRANGARA, PERUMBAVOOR. 2. NATIONAL INSURANCE CO LTD., BRANCH OFFICE, PERUMBAVOOR. R1 BY ADV. MR.JOHN K.GEORGE R2 BY MR.MATHEWS JACOB, SENIOR ADVOCATE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.51 OF 2005 ............................................. Dated this the 22nd day of September, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Muvattupuzha in OP(MV)No.1653/2000. It is the case of the claimant that while he was travelling in a goods carriage driven by the 1st respondent from Perumbavoor and when it reached the place of accident, it overturned resulting in injuries to him. The owner/driver did not contest the case. The insurance compnay contended that the claimant being a passenger carried in a goods carriage is not covered by the policy and there were two persons carried in the vehicle violating the permit conditions and that the 1st/respondent is not liable to indemnify the insurer. The learned Tribunal found that the accident took place on account of the negligence of the auto driver, but held that by sitting in the cabin of the auto rickshaw the claimant was also responsible for the accident and therefore, he is not entitled to claim any compensation. It is against that decision, the claimant has : 2 : M.A.C.A.NO.51 OF 2005 come up in appeal. 2. Heard the learned counsel for the appellant as well as the insurance compnay. So far as the insurance company's liability is concerned, it is argued by the learned counsel for the appellant that as the claimant was travelling in the goods auto rickshaw accompanying his goods, there was no necessity to have separate premium paid for the coverage of the policy and so by the statutory fiction after the amended Act of Section 54 of 1994, the insurance company is bound to pay the compensation for the owner of the goods or the representaive of the owner of the goods. There cannot be any quarrel about that proposition and it has been the position decided by the High Court as well as the Apex court especially in Asha Rani's case. But, whether the claimant can claim compensation by travelling in the cabin of a goods auto rickshaw is a matter that requires consideration. At least one must be an authorised person to travel in the vehicle and if that person travels in that capacity as the owner of the goods or the : 3 : M.A.C.A.NO.51 OF 2005 representaive of the owner of the goods is bound to be indemnfied. The Hon'ble Apex Court had considered this question in the decision reported in United India Insurance Co. v. Suresh [2008 (4)KLT 552 (SC)]. In Para 13, the Hon'ble Apex Court had held as follows: "If the claimant had not been travelling in the vehicle as the owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter, in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as an owner of the vehicle is supposed to share the seat of the driver. Violaltion of the condition of the contract of the insurance, therefore is approved and the Apex Court restraining its power under Article 142 of the Constitution of India did not order reimbursement or anything of that nature". 4. In this case, admittedly the claimant was travelling in a goods auto rickshaw and he was not expected to travel and therefore he cannot be indemnified by the insurance company and so the insurance company is exonerated from the liability. The next question is whether the claimant is entitled to any compensation. The Tribunal has entered : 4 : M.A.C.A.NO.51 OF 2005 into a finding that there was negligence on the part of the driver of the auto rickshaw in causing the accident. Then it goes to the dictum laid down in Rylands v. Fletcher ( ) to hold that the claimant will not be entitled to any compensation. It has to be specifically remembered that while answering issue No.1, the Tribunal has held that the accident had occurred due to the negligence of the 1st respondent. I do not know why the Tribunal again went back and dismissed the application. The person who is responsible for the accident under the provisions of the Motor Vehicle Act also is bound to pay the compensation. Therefore I find that the owner/driver namely the 1st respondent herein is liable to pay the compensation. The next question is what is the quantum. It is seen that the claimant has sustained an abrasion over the right foot, a fracture of the tip of the nasal bone and a laceration of the left glottis. He was admitted in the hospital on 19.4.2000, which means that he was in the hospital for a period of 10 days. It is true that there is no leak proof : 5 : M.A.C.A.NO.51 OF 2005 evidence to prove his income. But being a man aged 26 years, there is nothing wrong in fixing his income at Rs.1,500/= in the year 2000. I award him a compensation of Rs.2,000/= towards loss of earnings for 4 to 6 weeks. I further award a compensation of Rs.1,000/= towards medical expenses and a sum of Rs.500/= towards bystander's expenses and another Rs.500/= is awarded towards transport and extra nourious food. Towards compensation for pain and suffering considering the fact that he had a fracture of the tip of the nasal bone, I am inclined to grant Rs.5,000/= and certainly on account of this fracture there would have been temporary loss of amenities and enjoyment in life for which I grant Rs.3,000/= thereby entitling the claimant to have a compensation of Rs.12,000/=. The 1st respondent is liable to pay the same. In the result, the MACA is partly allowed and the claimant is awarded a compensation of Rs.12,000/= with 7% interest on the said sum from the date of the petition till realisation from the 1st respondent and he is directed to : 6 : M.A.C.A.NO.51 OF 2005 deposit the said amount within a period of 90 days from the date of receipt of a copy of this judgment. The insurance company is exhonerated from the liability. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 7 : M.A.C.A.NO.51 OF 2005