IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 MFA.No.562 of 2003 (A) ---------------------------- W.C.CASE NO.69/2000 of WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER, KANNUR .................... APPELLANT: 3RD RESPONDENT: ------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS ASST. MANAGER, KOCHI REGIONAL OFFICE, T.P. CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENTS: APPLICANTS & OPPOSITE PARTIES 1 & 2: -------------------------------------------------------------------- 1. VADAKKETHADATHIL PHILIP, S/O. JOHN, CHETTIPARAMBA, KELAKAM, THALASSERY. 2. THRESIA, W/O. VADAKKETHADATHIL PHILIP, -DO- -DO-. 3. K.J.SEBASTIAN, KALAPPURAKKAL HOUSE, KOTTIYOOR P.O., KELAKAM. 4. MATHEW, MUKKALIYIL HOUSE, KELAKAM, KANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 & R2 SRI.K.V.PAVITHRAN FOR R3 SRI.SHEJI P.ABRAHAM FOR R3 SRI.SARVOTHAMAN FOR R4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.No.562 of 2003 (A) -2- ORDER ON I.A. NO.355/2003 IN M.F.A. NO.562/2003 DISMISSED SD/- SD/- J.B.KOSHY K.P.BALACHANDRAN JUDGE JUDGE 05/08/08 //TRUE COPY// P.A. TO JUDGE J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. F. A No.562 of 2003 ------------------------------------------------ Dated this the 5th day of August, 2008 JUDGMENT J. B. Koshy, J This is an appeal filed by the Insurance Company. The respondents/ applicants are the dependents of 22 years old man. They applied for compensation under Workmen's Compensation Act contending that due to the negligence of the first respondent/the driver of the lorry owned by the second respondent and insured by the third respondent, their son sustained serious injuries and died in the course of employment. It is also submitted that he was employed by the second respondent as loading and unloading worker in the lorry bearing registration No.KL.11C.779. The death due to the accident is not disputed. The Commissioner for Workmen's Compensation awarded a compensation of Rs.2,87,781/- for the death of the son of the applicants. Third respondent/ M. F. A No.562 of 2003 -2- Insurance Company questioned the award contending that on the basis of Asharani's case decision (New India Insurance Co. Ltd. v. Asha Rani and ors. (2003) 2 SCC 223) nobody can be carried in a goods carriage and the claim of any such person is not liable to be fixed on the insurer under the statute. It is true that in view of the decision of the Hon. Apex Court in Asha Rani's case (cited supra) passenger in a goods vehicle is not covered by the policy unless there is specific coverage mentioned in the policy. Ext.R1 is the insurance policy certificate. The above certificate clearly shows that it is intended for carriage of goods. Clause No.3 limitation of use says that it does not cover passengers in the vehicle except employees (other than driver) not exceeding six in number under the purview of Workmen's Compensation Act, 1923 and thereafter, driver was specifically covered. Therefore, there was a condition in the policy M. F. A No.562 of 2003 -3- to cover passengers who are employees not exceeding six in number. But they are only entitled to compensation as provided under Workmen's Compensation Act. Contributory negligence by not travelling in a cabin etc. is not a ground for denying compensation under the Workmen's Compensation Act. In view of the specific coverage in the policy of six employees other than driver under the Workmen's Compensation Act, we are of the view that the Insurance Company is liable to pay compensation and no interference is required in the award passed by the Commissioner for Workmen's Compensation. Appeal fails and is dismissed accordingly. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-