IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 MACA.No. 524 of 2003(C) ----------------------- OPMV.1137/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT : 3RD RESPONDENT ----------------- NATIONAL INSURANCE COMPANY LIMITED, THRISSUR NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, AJAI VIHAR, KOCHI - 16. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENT(S): PETITIONERS AND RESPONDENTS 1 AND 2 -------------------- 1. MRS.AMMINI, W/O.LATE DIVAKARAN, PATHIYARIL HOUSE, KODANNOOR, THRISSUR TALUK. 2. P.D.SASIKUMAR, S/O.LATE DIVAKARAN, DO. DO. 3. P.D.USHA, D/O.LATE DIVAKARAN, DO. DO. 4. P.D.RAJANI, D/O.LATE DIVAKARAN, DO. DO. * 5. MRS.KALI, W/O.LATE RAMAN, DO. DO. 6. M.P.MADHAVAN, MARATH HOUSE, VENGINISSERY, KODANNOOR P.O., THRISSUR DISTRICT. * 7. M.M.JAYAKUMAR, S/O.MADHAVAN, DO. DO. (RESPONDENTS 5 AND 7 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DTED 4.3.2009 IN I.A.NO.610 OF 2009) BY ADV. SRI.B.JAYASANKAR FOR R1 & R4 SRI.P.K.SAJEEV FOR R1 & R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.A.C.A.No. 524 OF 2003 ------------------------------- Dated this the 7th September, 2009 J U D G M E N T Raman, J. This appeal is filed by the Insurance Company against the award of the Motor Accidents Claims Tribunal, Irinjalakuda, in O.P.(MV) 1137 OF 1996. 2. The claim was preferred by the legal heirs of deceased Divakaran claiming compensation for his death in a motor accident. The accident occurred on 7.5.1996, while he was travelling as a passenger in a lorry, after unloading the goods. The deceased was 58 years at the time of accident. It is stated that to enable him to get down from the lorry, the driver stopped the vehicle, when he fell down and the back wheel of the lorry ran over him, as result of which he died. Sixth respondent MACA.No.524 of 2003 2 was the owner of the vehicle and the 7th respondent was the driver, who is none other than the son of the owner. 3. The evidence consists of oral testimony of PWs.1 and 2, and documentary evidence, Exts.A1 to A6 were marked on the side of the claimants and Ext.B1 was marked on the side of the respondent. PW.1 was the son of the deceased Divakaran and PW.2 was another co-passenger who travelled along with the deceased in the lorry. 4. Though the lorry driver contested the matter, negligence was found proved on evidence. The main grounds urged by the Insurance Company were that the deceased was a gratuitous passenger and further that the driver had no valid licence, and hence denied the liability. Though such contentions were set up in the written statement, the Tribunal did not answer those contentions in the award under challenge. The court below, after finding that the accident occurred as a result of the negligence on the part of the driver, held the owner and driver MACA.No.524 of 2003 3 liable, and since admittedly the vehicle is insured with the appellant, the liability was fastened on the appellant. Accordingly, award for the amount of Rs.1,19,000/= with 9% interest was passed. Hence, this appeal. 5. The learned Senior counsel, Sri.Mathews Jacob, appearing for the appellant Insurance Company contended that even though the finding of negligence and the quantum, as such are not disputed, two specific contentions urged in the written statement, one that the deceased was a gratuitous passenger and hence there is no liability for the insurance company to compensate the deceased, and the other that the second respondent driver had no valid licence, was not considered by the court below. 6. After going through the entire records and the award passed, we find that except to raise the contentions in the written statement, the appellant is seen not to have pressed those contentions by adducing any evidence. If, as a matter of MACA.No.524 of 2003 4 fact, these contentions were pressed at the time of hearing, the appellant ought to have filed a review application. That was also not done. 7. Further, we find from the insurance policy that an additional premium of Rs.68/= was collected, and whether it is to cover any loading and unloading employees travelling in the lorry or not, is a matter on which no evidence was adduced by the insurance company. The burden being heavily on the insurance company to explain why additional premium was collected, towards what liability etc., we cannot appreciate the contention that on the face of the policy produced, gratuitous passenger is not covered. 8. Be that it may, we went through the evidence and find that the death occurred as a result of the lorry running over the deceased, after he fell down. Even though a passenger while alighting from the bus, fell down and could be treated as an accident, as his physical contact with the bus still remains, as MACA.No.524 of 2003 5 held by this Court in New India Assurance Co. Ltd. v. Annakutty (1992 (2) KLT 727), on facts, the present case is distinguishable, as the deceased Divakaran had no contact with the bus, at the time the lorry run over the deceased. In this case, it is not as a result of the fall from the lorry he died, but the death occurred as a result of the lorry running over him, while he was on the ground. Therefore, on facts, he can even be treated as a third party. However, it is not necessary to finally decide this question, since the contention as raised by the appellant is not supported by any evidence produced and not even seen pressed at the time of hearing before the court. In such circumstances, we fail to appreciate the contentions raised for the first time before us. 9. Likewise, the plea that the driver had no valid licence also was not substantiated by taking any steps to summon the licence or to examine anybody in this behalf. Further, the driver who was originally made a party in this appeal MACA.No.524 of 2003 6 has since been removed as per orders passed in I.A.No.610 of 2009, at the risk of the appellant. For the above reasons, we find no merit in this appeal. Accordingly, the appeal is dismissed. No costs. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.