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. 1504 of 2006(A) & CROSS OBJECTION ------------------------------------------------------- OPMV.1125/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/2ND RESPONDENT IN THE OP(MV) ------------------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, THIRUVALLA BRANCH, REPRESENTED BY ITS ASSISTANT MANAGER, NATIONAL INSURANCE COMPANY LTD., MOTOR THIRD PARTY CLAIM SECTION, AJAY VIHAR, M.G.ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENTS: PETITIONER AND 1ST RESPONDENT IN THE OP(MV) ----------------------------------------- 1. JOSE, S/O.OUSEPH, AGED 47 YEARS, PANAMALA HOUSE, PAZHAMPILLICHAL BHAGOM, VALARA KARA, MANNAMKANDAM. 2. CHERIYAN GEORGE,S/O.CHERIYAN, KAVILA HOUSE, PACHA, EDATHUVA, ALAPPUZHA DISTRICT. BY ADV. SRI.SOORAJ T.ELENJICKAL FOR R1,R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2008 ALONG WITH MACA NO. 1506 OF 2006 & CROSS OBJECTION NO.94/06, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA No. 1504/06 2 ORDER ON IA No. 1740/06 IN MACA No.1504/06 DISMISSED 21.8.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1504 of 2006 & Cross Objection No.93 of 2006 AND M.A.C.A. No. 1506 of 2006 & Cross Objection No. 94 of 2006 --------------------- Dated this the 21st day of August, 2008 JUDGMENT MACA Nos.1504/06 & 1506/06 are preferred by the Insurance Company against the award passed by the Motor Accident Claims Tribunal, Thodupuzha, in OP(MV) Nos. 1125/02 & 1126/02. The Insurance Company is aggrieved by the decision of the Tribunal directing the company to pay the amount and recover it from the owner. The cross objections are filed by the claimants in the cases contending that the finding of the Tribunal that they were not the owner of the goods or representative of the owner of the goods and were only gratuitous passengers is incorrect. According to them, they were representatives of the owner of the goods and therefore is entitled to statutory coverage under section 147(1)(b) of the Motor Vehicles Act. The brief facts necessary for consideration are stated as follows. 2. The claimants were travelling in the platform of a lorry. There were bamboo reeds in the vehicle. It is contended that they MACA No. 1504/06 & Conn. Cases 2 were loading the bamboo reeds from one place and were proceeding to another place for loading the same from that area. Before reaching that place, on account of the rash and negligent driving of the driver, the vehicle met with an accident resulting in injuries to them. 3. On the other hand, Insurance Company would contend that they were only gratuitous passengers travelling in a lorry and they are not covered by the policy and therefore Insurance Company cannot be directed to pay the amount. The Tribunal has clearly observed that the claimants have no case in the claim application that they were employed by the 1st respondent owner of the lorry for the purpose of loading or unloading the reeds. It was only at the stage of evidence, a version is given to that effect. The 1st respondent owner also filed a written statement before the Tribunal and never stated that those persons were his employees and therefore the Tribunal held that they were not travelling in the lorry as the owner or representative of the owner of the goods loaded in the lorry and are not entitled to claim the benefit of section 147(1)(b) coverage. 4. These points had been dealt by the Tribunal from para MACA No. 1504/06 & Conn. Cases 3 34 of the award onwards. It is stated that the evidence of PW1 is to the effect that he himself and other petitioner were engaged in loading the reeds with one Cherian George. According to PW1 they used to get Rs.1,000/- per load. The Tribunal referred to Ext.X1 which is the case diary. A perusal of the same does not show that they were travelling in the lorry in question as authorised representative of the goods loaded in the lorry. On the contrary it is revealed that they were travelling in the lorry belonging to the 2nd respondent for loading purposes. The Tribunal also referred to the written statement of the 1st respondent. He has no case that he was a bamboo contractor or the owner of the bamboo reed loaded in the lorry at the time of the accident. When the 1st respondent specifically does not have a contention that he was a bamboo contractor, then the version of PW1 that he was a bamboo contractor and that they were travelling in the lorry in that capacity cannot be accepted. Therefore from the materials available, one cannot find out who is the real owner of the reeds and who has authorised these persons to travel in the lorry. Therefore, I cannot find fault with the Tribunal for arriving at a decision that they have not succeeded in proving that they were traveling in the lorry as representatives of the MACA No. 1504/06 & Conn. Cases 4 owner of the goods. When they are not travelling as representatives of the owner of the goods and as the policy does not have a wider coverage, only the persons contemplated under section 147(1)(b) of the Act need be covered and are liable to be indemnified. It has been held in New India Assurance Co. Ltd. v. Asha Rani [2003 (1) KLT 165 (SC)] as well as in United India Insurance Co. Ltd. v. Tilak Singh [2006 (4) SCC 404] that the status of such persons travelling in the vehicle would be that of a gratuitous passengers and they are not covered by the terms and conditions of the policy. It is also contended by the learned counsel for the Insurance Company that a person is not expected to travel on the floor of the lorry or over the luggage so as to cause danger to himself. He has also drawn my attention to Rule 46(3)(b) which reads as follows: “Provided that no person shall be carried in a goods carriage upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle or when any part of such person in a sitting position is at a height exceeding 305 centimetres from the surface upon which the vehicle rests.” 5. Further, the Apex court has held that the owner of the goods can only travel in the cabin of the vehicle. Therefore, it will extent in all force to the representative of the owner of the goods as MACA No. 1504/06 & Conn. Cases 5 well. Therefore that is also a point which has to be found against the claimants in the case. Therefore, the finding of the Tribunal that they were gratuitous passengers not entitled to coverage is upheld. 6. Then the next question that arises for consideration is regarding the liability of the Insurance Company to indemnify such persons. Learned counsel for the claimants, who have filed cross objections, would strongly contend that in any event the Tribunal could direct the Insurance Company to pay the amount and get it reimbursed from the owner. I cannot agree with the said argument for the following reasons. The dictum laid down in National Insurance Co. Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)] and other cases mainly deals with the principle factor of persons who are third parties to the Insurance Company. In such cases when there is a breach of policy condition by the owner, then the statutory liability does not cease and therefore the Insurance Company is directed to pay the amount and get it reimbursed from the owner of the vehicle. Suppose a person who was travelling in the vehicle does not come within the ambit of the policy at all or in other words, when there is no coverage for that person under the policy, then the question of the Insurance Company indemnifying the owner in such a case does not MACA No. 1504/06 & Conn. Cases 6 arise at all. Therefore one cannot pass a direction to the Insurance Company to pay the amount and get it reimbursed, for the reason that the Insurance Company is not liable at all. It is just like as if there is no policy so far as those persons are concerned. In the decision reported in New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and Another [2008 (3) T.A.C. 20 (SC)]. The Apex court in the case of a person travelling as a passenger in a goods vehicle held that the Insurance Company cannot be made liable. Therefore, I find that the decision of the Tribunal to direct the Insurance Company to pay the amount and get it reimbursed from the owner has to be set aside and I do so. In the light of the above discussions, I do not find any merit in the cross objections and therefore they are liable to be dismissed and I do so. In the result, the appeals filed by the Insurance Company are allowed and the Insurance Company is exonerated from the liability and the claimants are directed to realise the amount from 1st respondent . M.N.KRISHNAN, JUDGE vps MACA No. 1504/06 & Conn. Cases 7