IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 MACA.No. 1781 of 2007(G) ---------------------------- OPMV.3200/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/3RD RESPONDENT --------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP. BY THE MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS: PETITIONER, 2ND RES. & ADDL.RES. 4 TO 6 RESPCTLY. --------------------------------------------------------------------- 1. V.G.BABY, S/O. GEORGE, ADAKKUMKANDATH HOUSE, ASSAROKKAD P.O., PEECHI, THRISSUR DISTRICT. 2. SEBASTIAN, S/O. VARGHESE, ELAVUMOOTTIL HOUSE, ASSARIKKAD, PEECHI, THRISSUR. 3. INDIRA, AGED ABOUT 39 YEARS, W/O. K.PURUSHOTHAMAN, KADAVATHU HOUSE, PATTIKKAD P.O., THRISSUR. 4. ASWATHY, AGED ABOUT 14 YEARS, D/O. K.PURUSHOTHAMAN, -DO- 5. NANDAKUMAR, S/O. K.PURUSHOTHAMAN, AGED ABOUT 12 YEARS, -DO- MINOR RESPONDENTS 4 AND 5 ARE REPRESENTED BY MOTHER, 3RD RESPONDENT, INDIRA. BY ADV. SRI.P.SANTHOSH (PODUVAL) FOR R.3 SMT.RAJITHA.R. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2008, ALONG WITH MACA 2252/07, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 1781 & 2252 OF 2007 = = = = = = = = = = = = = = = Dated this the 21st day of August, 2008. J U D G M E N T These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Thrissur in O.P.(MV) Nos.3200/01 and 3204/01. Both the claimants were travelling in a goods auto rickshaw and they sustained injuries in a road accident. The insurance company contended that it was only an Act only policy and it did not cover passengers carried in goods vehicle. The Tribunal on a consideration of the materials awarded compensation in both the cases and directed the insurance company, namely, the 3rd respondent therein to pay the amount. It is against that decision, the insurance company has come up in appeal challenging the finding of the Tribunal regarding its liability. 2. The question argued before this Court is that the petitioners were carried as passengers in a goods vehicle and are not covered by the policy issued by 3rd respondent. Whereas it is stated by the claimants that the petitioners M.A.C.A.s. 1781 & 2252 OF 2007 OF 2007 -:2:- were carrying own tapioca in the goods carriage and so they were the owner of the goods accompanying the goods and therefore entitled to have statutory coverage. The carriage of passengers in a goods auto rickshaw which has only a seat of a driver has been considered by the Apex Court in the recent decision reported in 2008 AIR SCW 4739, i.e. United India Insurance Co. Ltd. v. Suresh. In paragraph 13 the Apex Court held, “If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of 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 a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved.” But in that case invoking the powers of the Apex Court it directed the insurance company to pay the amount. But M.A.C.A.s. 1781 & 2252 OF 2007 OF 2007 -:3:- such a power cannot be exercised by this Court and status of the passengers in a goods vehicle amounts to that of a gratuitous passenger and as they are not third parties they are not bound to be indemnified by the insurance company for the reason that it is out of the insurance contract between the owner and the insurer. Therefore the finding of the Tribunal that the insurance company is bound to pay the amount is set aside and the award is modified and the insurance company is exonerated from the liability and respondents 1 and 2 in the claim petition are directed to pay the amount to the claimant jointly and severally. The amount deposited by the insurance company, if not already disbursed, should be given back to the insurance company. The MACAs. are disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-