IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 MACA.No. 710 of 2009(A) ---------------------- OPMV.1520/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT ----------------------- NEW INDIA ASSURANCE COMPANY LTD. KOTTAYAM. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): --------------- 1. THAMPY, PLAVELIL (H) PANACHIKAVU POST CHANGANACHERRY. 2. P.A.KUNJUMON, PARACKAL, POOVAM, PERUNNAI, CHANGANACHERRY. 3. KUNJUMON K.H.,KAITHAMOOTTIL (H) PAIPADU, CHANGANACHERRY. BY ADV. SRI.T.K.RADHAKRISHNAN FOR R1 SRI.G.SUKUMARA MENON FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. N. KRISHNAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No: 710 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th Day of September, 2009. JUDGMENT This is an appeal preferred against the award of Motor Accidents Claims Tribunal, Kottayam in O.P.(M.V.) No.1520 of 2005. The claimant was travelling in the cabin of a goods autorikshaw, which met with an accident and the Tribunal has awarded a sum of Rs.36,800/-. The Tribunal directed the Insurance Company to pay the amount and recover the same from the other respondents. It is against that decision, the Insurance Company has come up in appeal. The appellant is claiming for total exoneration from the liability. 2. A perusal of the decision reported in United India Insurance Co. Ltd. V. Suresh (2008 (4) KLT 552 (SC)) would reveal that, in a goods vehicle a person cannot be carried as a gratuitous passenger. Certainly, if such a person travels in the cabin of the driver and sustains M.A.C.A. NO: 710 OF 2009 :2: injuries, he cannot be compensated by the Insurance company. Admittedly the vehicle involved in the accident is a goods autorikshaw. Goods autorikshaw has got only the seat of the driver. Nobody is expected to share the driver's seat for travel. In the decision referred to above in para 13, the Apex Court made the following observations and findings: “ In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved.” 3. The Apex Court exercising its jurisdiction under Article 142 of the Constitution of India did not interfere with the direction to pay to that case. But such cannot be the case for the High Court. Therefore, the Insurance Company cannot be saddled with the liability to pay the amount. Therefore, the award directing the M.A.C.A. NO: 710 OF 2009 :3: Insurance Company to pay the amount is set aside and the claimant is permitted to realise the amount from the respondents 1 and 2 jointly and severally. Disposed of the above M.A.C.A. accordingly. M. N. KRISHNAN, (JUDGE) dl/