IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 MACA.No. 872 of 2005(C) --------------------------- OPMV.820/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): /PETITIONER ---------------------------------- BHUVANACHANDRAN, S/O.SOMAN NAIR, THEKKUMOLAYIL, (KUNNATHUPUTHANPURAYIL), KAKKADU P.O., PIRAVOM. BY ADV. SRI.K.R.KURUP SRI.C.R.SYAMKUMAR SRI.C.R.VINOD KUMAR SRI.C.S.VINODKUMAR RESPONDENT(S)/RESPONDENTS : ------------------------------------- 1. THE DIRECTOR GENERAL OF POLICE, KERALA, TRIVANDRUM. 2. ALEX.C.V., S/O.VARGHESE, CHERUVALLIL (H), AMBALLOUR. 3. THE UNITED INDIA INSURANCE COMPANY LIMITED, ALUVA. ADV. SRI.RAJESH THOMAS FOR R3 GOVERNMENT PLEADER FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 872 OF 2005 = = = = = = = = = = = = = = = Dated this the 31st day of March, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)820/01. A police jeep carrying police officials got involved in an accident when it gave way to a lorry coming from the opposite direction resulting in the jeep falling into a lower terrain resulting in injuries to the occupants of the jeep. The learned Tribunal found that as per the police report the accident is ...................” and as the matter is referred there is nothing to show that the driver was negligent. Any accident for that matter is not a premeditated one. Since it is not a premeditated one it is always called as an accident. A driver of a vehicle, irrespective of the category of the vehicle is involved, has to bestow maximum care and attention to avert accidents. The exceptional cases are by mechanical failure or act of Got. In this case neither there is M.A.C.A. 872 OF 2005 -:2:- any mechanical defect nor any act of God so as to exonerate the driver from liability. When a vehicle is coming from the opposite direction certainly it is visible and if that vehicle is coming at a high speed the vehicle which is going from the opposite direction especially the driver is expected to bestow care and attention not only to avert accident but to avoid any injury to the occupants of the jeep. When one driver puts the jeep so close to the road margin knowing fully well that there is a lower area from the road margin and when the vehicle capsize it is to be held that he had not taken adequate care which he was expected to take under the civil law. One cannot attribute criminal negligence on him. But it will be a case sufficient to hold that there is negligence. As stated negligence takes place when one performs duty which one is not expected to do and restrain from performing a duty which is expected to do. Here he had not performed a duty which he should have done carefully and diligently. Therefore it has to be stated that the finding of the Tribunal that the driver is not responsible for the accident cannot be M.A.C.A. 872 OF 2005 -:3:- accepted. Therefore it is a case where things itself speaks and I hold that the accident had taken place only on account of the negligence of the driver of the jeep. 2. Now coming to the quantum. Fortunately for the claimant he had not suffered very serious injuries. He had two small lacerations of .5 cm long on the right eyebrow but he had shoulder pain which on radiological examination revealed that there was anterior dislocation of the shoulder. Dislocation of shoulder is a painful injury. But he has been only treated as an outpatient and materials are not available to show that he had any continuity of treatment. So for that injury I feel Rs.1,000/- can be given as treatment expenses and Rs.1,000/- as incidental expenses and a sum of Rs.5,000/- for pain and sufferings and temporary loss of amenities, thus making a total compensation of Rs.7,000/-. 3. Now the next question is regarding the liability. It is submitted that the policy issued is only an Act only policy. It is true that by virtue of the clarificatory circular issued by the Insurance Regulatory and Development Authority M.A.C.A. 872 OF 2005 -:4:- insurance company's liability in respect of passengers carried in a private vehicle and persons carried in a two wheeler are covered under the terms and conditions of Standard Motor Package Policy. But here the policy is only an Act only policy. Or in other words, liability only policy. When it is only a liability only policy the dictum laid down by the Apex Court in Tilak Singh's case has to be followed. The status of persons travelling in such vehicles are that of gratuitous passengers and the word 'any person' does not cover them and they will be covered only if additional premium is paid. Therefore the insurance company cannot be saddled with the liability. So I exonerate the insurance company from the liability. Then it follows that respondents 1 and 2 are jointly and severally liable for the liability. In the result the MACA is allowed and the award under challenge is set aside and the claimant is awarded a compensation of Rs.7,000/- with 7.5% interest on the said sum from the date of petition till realisation and the first respondent is directed to deposit the same within a period of M.A.C.A. 872 OF 2005 -:5:- sixty days from the date of receipt of a copy of the judgment. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge.