IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 MACA.No. 1324 of 2006() ----------------------- APPELLANT(S)/3RD RESPONDENT: -------------------------------------- THE ORIENTAL INSURANCE COMPANY LTD., ALAPPUZHA, NOW REP. BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 2: -------------------------------------- 1. PURUSHOTHAMAN, S/O.UNNI, CHELATTUVELIYIL, WARD NO.X, KAYIPRAM, MUHAMMA PANCHAYAT, MUHAMMA P.O. 2. R.SATHEESAN, S/O.RAJU, JINI NIVAS, VARANAM.P.O, PUTHANANGADI, CHERTHALA. 3. BABU.C.T., S/O.THANKAPPAN, PUTHENVEEDUVELI WARD NO.VI, MUHAMMA PANCHAYAT, MUHAMMA P.O. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.A.C.A.1324/06 ORDER ON I.A.1469 OF 2006 IN M.A.C.A.1324 OF 2006 DISMISSED. SD/- C.N.RAMACHANDRAN NAIR, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 9.12.2009 okb /True copy/ P.A. to Judge C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ---------------------------------- M.A.C.A. No.1324 of 2006 ---------------------------------- Dated this the 9th day of December, 2009 J U D G M E N T ---------------------- Abdul Rehim,J. 1. The insurer of a vehicle involved in the accident, who is the 3rd respondent before the Tribunal, is in appeal challenging the award by which liability is put on them. The 1st respondent/claimant sustained injuries while travelling in an autorikshaw (goods autorikshaw) which overturned allegedly due to rash and negligent driving of the vehicle by its driver. The appellant insurance company contended that the injured was a gratuitous passenger in the goods vehicle and as per the conditions of the policy they are not liable to pay the compensation. The Tribunal found that the accident occurred due to rash and negligent driving of the vehicle by its driver. But it is found that in the claim petition itself it is stated that the claimant is a grocery merchant and he had hired the vehicle in question, for purchasing grocery items and the accident occurred when the vehicle was plied under hire by the claimant, for carrying grocery items. The testimony of the claimant who was examined as PW1, had reiterated the above version. Therefore the Tribunal held that the claimant cannot be considered as a gratuitous passenger and he can be considered MACA.1324/06 2 as the owner of the goods, and hence the insurer is liable to indemnify the owner. 2. Heard, learned counsel for the appellant insurance company and counsel for the 1st respondent claimant. The appellant contended that since the vehicle involved in the accident was not carrying any goods at the time when the accident occurred, the claimant cannot be considered as the owner of the goods carried in the vehicle. In support of his contention the appellant had pointed out a decision of the Hon'ble Supreme Court in National Insurance Company Vs. Kaushalaya Devi and Others (2008 ACJ 2144). In the said case the deceased was a vegetable dealer and he was travelling in the truck for collecting empty vegetable boxes. The Hon'ble Supreme Court held that he was not travelling in a truck as owner of the goods, which is the vegetables, but he was travelling for the purpose other than one for which he was entitled to travel in a public carriage goods vehicle. The appellant had further pointed out another decision of the Hon'ble Supreme Court in United India Insurance Company Vs. Suresh (2008 (4) KLT 552 (SC)) =(2008 AIR SCW 4739) wherein it is held that if the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In that decision it is held that in the matter of a three-wheeler goods carriage the driver could not have allowed MACA.1324/06 3 anybody else to share his seat. No other person, whether as passenger or as owner of the vehicle, is supposed to share the seat of the driver. Hence violation of the condition of contract of insurance is apparent in such cases. 3. On the contrary, learned counsel for the 1st respondent claimant contended that the accident occurred when the claimant had travelled in the goods autorikshaw which he had hired for purchasing vegetables and therefore the vehicle was plying during the relevant time for carrying goods and the claimant is the owner of the goods. Therefore he is a person coming within the purview of Section 147(1)(b)(i) of the Motor Vehicles Act, and hence the insurance company is liable. His further contention is that even if there is any violation of the conditions of the policy, the insurance company is entitled only for a recovery of the claim amount from the owner of the vehicle, after effecting payment of compensation to the claimant. In this regard our attention is drawn to the operative portion of the judgment in United India Insurance Company Vs. Suresh (cited supra) wherein the Hon'ble Supreme Court has adopted the very same method. 4. On evaluating the rival contentions we are of the opinion that there is corroborative evidence to the effect that the vehicle was plying as hired by the claimant during the relevant time for the purpose of taking vegetables. Therefore we are of the MACA.1324/06 4 opinion that the claimant in this case can be considered as owner of the goods intended to be carried in the autorikshaw for which it was hired. Hence we have no hesitation to hold that the claimant is a person entitled to get compensation from the insurer under the provisions of Section 147(1)(b) of the Act. But considering the dictum laid by the Hon'ble Supreme Court in the decisions cited above, the vehicle being a three-wheeler, the driver was not supposed to carry any other passenger. Therefore there is violation of the conditions of the insurance policy. Hence we are of the view that the insurance company should be permitted to recover the amount of compensation from the owner of the vehicle. 5. Under the above circumstances the appeal is allowed in part. While upholding the findings of the Tribunal putting liability on the insurance company to pay the amount of compensation awarded to the claimant we modify the award providing right of recovery to the appellant insurance company to realise the amount of compensation from the owner of the vehicle, after payment of the amount to the claimant. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb