IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 MACA.No. 841 of 2005() ---------------------- (AGAINST THE ORDER OF MACT PERUMBAVOOR IN OP (MV) 1671/2000) APPELLANT/3RD RESPONDENT. ------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS DEPUTY MANAGER, KOCHI REGIONAL OFFICE, THIRD PARTY CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS: PETITIONER. ------------------------ 1. ASOKAN, S/O.PRABHAKARAN, THEKKEKUTHU VELIYIL HOUSE, S.N.PURAM, CHERTHALA. 2. P.SHAJI, S/O.PAVITHRAN, ASSARIVELI VEETTIL HOUSE, CMC 13, MARUTHORVATTOM P.O. CHERTHALA. 3. KRISHNA PILLAI, S/O.KUTTAN PILLAI, SARASWATHI MANDIRAM HOUSE, MARUTHORVATTOM P.O. CHERTHALA. BY ADV. SRI.T.JAYAKRISHNAN FOR R2 BY ADV. SRI.WILSON URMESE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------------- M.A.C.A.No.841 of 2005 ------------------------------- Dated this the 30th May, 2008. J U D G M E N T This appeal is preferred by the Insurance Company against the award passed by the Motor Accidents Claims Tribunal, Perumbavoor, in OP (MV) No.1671/00. Petitioner sustained injuries in a road accident while he was travelling in a tempo van. It is averred that on account of the negligence of the driver, the tempo van hit behind the lorry, resulting injuries to him. The court below awarded him a compensation of Rs.23,300/=, and also directed the Insurance Company to wipe off the liability. Insurance Company has come up in appeal. 2. The definite contention of the Insurance Company is to the effect that the claimant was a gratuitous passenger in a goods vehicle and was not covered by any policy, and, therefore, it is not liable to indemnify the owner of the vehicle. 3. I had perused the lower court records including the First Information Statement. In the First Information Statement given MACA No.841/2005 2 by the injured himself, it is stated that he is doing tapping work in Palakkad district. While he was returning home, he happened to travel in a tempo van, which met with the accident. Owner and driver of the vehicle also had filed written statements, wherein also, there is no averment that the petitioner was travelling at the instance of the owner of the tempo. In a case of this nature, as the Law stands today, and in view of the dictum laid down in New India Assurance Co.Ltd. v. Asha Rani (2003 (1) SCC 223), the liability to indemnify the owner of the vehicle, with respect to the owner of the goods or the representative of the owner of the goods was incorporated in the Statute only with effect from 14.11.1994. Admittedly, accident had taken place after the said period. But it has to be established that the injured was either the owner of the goods of the representative of the owner of the goods. There is nothing to show that there was any goods at all. Further, there is no evidence to prove that he was asked to travel either to take some goods or return back after the goods were unloaded. When it is so, it has to be held that the claimant or the owner of the vehicle has not succeeded in proving that claimant was a person accompanying the goods as a representative of the owner of the goods. If that be so, his status has to be relegated to that of a gratuitous passenger in a goods vehicle. There is no MACA No.841/2005 3 contention that there is a special coverage for the persons travelling in the vehicle. It is also well settled that a gratuitous passenger is not covered prior to of after the amended Act, as per the dictum laid down in National Insurance Co. Ltd. v. Baljit Kaur and Others (2004 ACJ 428) & Ratan Kumar Agarwala v. Sahanur Deva and others (2005 ACJ 1914 Calcutta). So, the contention of the Insurance Company that it is not liable to indemnify the owner has to be upheld and the appeal is to be allowed to that extent. Therefore, M.F.A. is disposed of directing that Insurance Company is exonerated from the liability, and the claimant is given permission to realise the award from respondents 1 and 2 jointly and severally. M.N.KRISHNAN, JUDGE nj.