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 22ND JUNE 2010 / 1ST ASHADHA 1932 MACA.No. 494 of 2005 -------------------------- OPMV.324/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA APPELLANT/3RD RESPONDENT: ---------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, CALICUT NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENTS/PETR. & RESPONDENTS 1 & 2: -------------------------------------------------- 1. P.M.MOIDEEN, S/O.AMMED, PILAKKATTE MEETHAL HOUSE, CHERUVANNOOR AMSOM, PAMPIRIKKUNNU P.O., VIA MEPPAYOOR, KOYILANDY TALUK. 2. P.ABDUL RAHOOF, S/O.P.M.ALIKOYA, PARTNER, ORIENTAL COACH BUILDERS, PADIKKAL HOUSE, KALLAYI P.O., CALICUT. 3. P.P.ABDUL MAJEED, S/O.MUHAMMED, PARAYIL PARAMBA HOUSE, PANNIYANKARA, KALLAYI P.O., CALICUT. ADV. SRI.C.VATHSALAN FOR R1 SRI.K.RAKESH ROSHAN FOR R1 SMT.THUSHARA.V FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - MACA. 494 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of June, 2010 Judgment Basheer, J: Appellant/Insurance Company impugns the award passed by the Motor Accidents Claims Tribunal contending, inter alia, that the direction issued by the Tribunal to indemnify the owner of the goods vehicle is per se illegal and vitiated, inasmuch as respondent No.1 claimant had totally failed to prove that he was accompanying the goods carried in the vehicle at the time of the accident. It is further contended by the appellant that respondent No.1 had raised inconsistent contentions before the Tribunal as regards the capacity in which he was travelling in the vehicle. Initially his contention was that he was travelling as a passenger in the auto rickshaw in question. But later he amended his pleadings and contended that he was in fact accompanying his goods in the said autorickshaw. 2. The Tribunal after considering the rival contentions of the claimant as well as that of the appellant/Insurance Company came to the conclusion that the appellant was liable to pay the compensation in view of the admission that it had issued a valid MACA.494/05 : 2 : insurance policy in respect of the vehicle. 3. The short question that arises for consideration is whether any interference is warranted with the impugned award. 4. It is not in dispute that the vehicle in question was designed to carry goods. It was the contention of the claimant that his goods (Fish) were being carried in the autorickshaw at the time of the accident. The above aspect has not been seriously disputed by the appellant Insurance Company. However learned counsel for the appellant submits that a specific contention was raised that no passenger can be allowed to be carried in a Goods Vehicle and therefore the appellant would not be liable to indemnify the owner. 5. A perusal of Ext.A1 First Information Report will show that the driver of the autorickshaw had permitted the claimant to be seated in the seat provided for the driver, when the accident took place. In that view of the matter, it can only be considered as a violation of policy condition. If that be so, in our view, the appellant has to necessarily pay the compensation to the claimant, with liberty to recover the same from respondents 1 and 2 , the owner and driver respectively of the vehicle. We are persuaded to take the above view in the light of the dictum laid down by their Lordships of the Supreme Court in United India Insurance Company Ltd. v. Suresh (2008 (4) KLT 552 (SC)). MACA.494/05 : 3 : 6. With the above modification in the award with regard to the right of recovery, the appeal is closed. 7. The appellant shall satisfy the award, if not already done, within one month from the date of receipt of a copy of this judgment. A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.