IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 MACA.No. 446 of 2004() ---------------------- OPMV.672/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT/ 6TH RESPONDENT ---------------------------- NATIONAL INSRANCE COMPANY LTD., REPRESENTED BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, T.P. CELL, M.G.ROAD, ERNAKLAM. BY ADV. SMT.RAJI T.BHASKAR RESPONDENTS/ PETITIONER AND RESPONDTS 1 TO 5 RESPECTIVELY ----------------------------------------------------------- 1. PAKRUDEEN,S/O.ABOOBACKER, AGED 35 YEARS, KARIKUZHIYIL HOUSE, P.O.PANAMARAM,MANANTHAVADY TALUK, WAYANAD DISTRICT. 2. M.ABOOBACKER,S/O.PATHU, MANNIL HOUSE, SATHRAM KUNNU P.O. SULTHAN BATHERI, WAYANAD DISTRICT (OWNER OF GOODS AUTORIKSHAW KL-12/6906) 3. ANWAR, S/O.AHMED KOYA, MANNIL HOUSE, SULTHAN KUNNU, P.O.SULTHAN BATHERI, WAYANAD DISTRICT (DRIVER OF GOODS AUTORIKSHAW KL-12/6906) 4. THE NEW INDIA ASSURANCE CO.LTD., KALPETTA BRANCH, WAYANAD DISTRICT, (INSURER OF GOODS AUTORIKSHAW KL-12/6906) 5. S.SREEKUMAR, THAIKANDIYIL HOUSE, AMBILERY P.O., KALPETTA, WAYANAD DISTRICT (OWNER OF GOODS AUTORIKSHAW KL-12/5349) MACA.NO.446/2004 6. BIJU,S/O. PRABHAKARAN, THADATHARIKATH HOUSE, P.O.VAZHAVATTA, VYTHIRI TALUK, KALPETTA, WAYANAD DISTRICT, (DRIVER OF GOODS AUTORIKSHAW KL-12/5349) ADV. SRI.DEVAN RAMACHANDRAN FOR R6 SRI.SURESH KUMAR FOR R6 SRI.P.T..ARUNKUMAR FOR R1 SRI.P.FAZIL FOR R1 SRI.A.C.DEVY FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.446 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of June, 2011 JUDGMENT Barkath Ali, J. Appellant in this appeal under Section 173 of Motor Vehicles Act is the 6th respondent Insurance Company in O.P.(MV)No.672/1996 on the file of Motor Accidents Claims Tribunal, Wayanad, Kalpetta. In this appeal, the appellant challenges the judgment and award of the Tribunal awarding a compensation of Rs. 38,200/- for the loss caused to the claimant on account the injuries sustained by him in a motor accident in so far as it did not allow the appellant to recover the compensation amount awarded from respondents 1 and 2, the owner and driver of the offending vehicle. 2. The accident happened on June 23, 1996 at about 11.30 a.m. at Yookalikavala. The claimant was travelling in the goods autorickshaw bearing Reg.No.KL-12/5349 which collided head on with another goods autorickshaw bearing Reg.No.KL-12/6906. Alleging negligence against the drivers of both the vehicles, the claimant filed MACA.No.446/2004 2 the O.P. before the Tribunal claiming a compensation of Rs. 3,00,000/-. 3. Respondents 1 to 3 are the owner, driver and insurer of the goods autorickshaw bearing Reg.No.KL-12/6906. Respondents 4 to 6 are the owner, driver and insurer of the goods autorickshaw bearing Reg.No.KL-12/5349. Respondents 1, 2, 4 and 5 remained absent before the Tribunal. The third respondent, the insurer of the goods autorickshaw bearing Reg.No.KL-12/6906 filed a written statement admitting the policy, but denied the liability. The sixth respondent, the insurer of the goods autorickshaw bearing Reg.No.KL-12/5349 also filed a written statement admitting the policy, but denied the liability. 4. PW1 was examined and Exts.A1 to A12 were marked on the side of the claimant. No evidence was adduced by the respondents before the Tribunal. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the fifth respondent, the driver of the autorickshaw bearing Reg.No.KL-12/5349 and awarded a compensation of Rs.38,200/- against respondents 4, 5 and 6. The sixth respondent has filed this appeal contending that as the claimant was a passenger in a goods autorickshaw, his risk is not covered by the policy issued in respect of the offending vehicle and that therefore the sixth respondent is entitled to recover the MACA.No.446/2004 3 compensation amount awarded from the fourth respondent, the owner of the offending autorickshaw. 5. Heard the counsel for the appellant and the counsel for the respondents. 6. The only point which arises for consideration in this appeal is whether the recovery right has to be granted to the appellant. It is the admitted case that claimant was a passenger in the offending goods autorickshaw. That being so, in the light of the principles laid down in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy (2003(1) KLT 583) and in New India Assurance Co. Ltd. v. Asha Rani ( 2003 ( 2) SCC 223), his risk is not covered by the policy issued in respect of the said vehicle. It follows that the appellant is entitled to recover the compensation amount awarded from the fourth respondent, the owner of the offending autorickshaw. In the result, the appeal is disposed of as found above. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.446/2004 4