IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 MACA.No. 623 of 2006() ---------------------- OPMV.1797/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- NATIONAL INSURANCE COMPANY LTD., ERNAKULAM, REP. BY THE MANAGER, REGIONAL OFFICE, MTPD, ERNAKULAM. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT & R1 & 2 --------------------------------- 1. BALACHANDRAN, S/O.THANKAPPAN, VAIPPEL, MEVELLOOR KARA, VELLOOR VILLAGE, KOTTAYAM. 2. KABEER, S/O.HANEFA, KALAPPURAVELIL, VELLOR VILLAGE, VADAKARA. 3. THE MANAGING DIRECTOR, M/S.COCHIN CEMENTS CO.LTD, VELLOOR, KOTTAYAM. ADV. SRI.P.P.JACOB FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No. 623/2006 ORDER ON I.A.NO. 721/2006 IN M.A.C.A.NO. 623/2006 DISMISSED. SD/- M.N. KRISHNAN, JUDGE. 02.01.2009 //TRUE COPY// P.A. TO JUDGE. M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 623 OF 2006 --------------------------------- Dated this the 2nd day of January, 2009 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Kottayam in O.P.(MV) No.1797/97. It is the case of the claimant that while he was travelling in a tipper lorry, it overturned resulting in injuries to him. The Insurance Company disputed the liability on the ground that a gratuitous passenger in a goods vehicle is not covered under the terms of the policy as the policy issued is only an Act only policy. So far as the persons travelling in a goods vehicle are concerned after the amendment to Section 147(1) of the Motor Vehicles Act by Act 54 of 1994, the owner accompanying the goods or the representative owner of the goods are statutorily covered under Section 147(1) of the Motor Vehicles Act. Prior to the amendment, the position was different and it was not covered. So when an Act only policy is issued, one has to establish that the person travelling in the goods vehicle was either owner of the goods or the representative of the owner of the goods. Unfortunately the tribunal instead of placing reliance on the decision of the apex court in New India Assurance Co. Ltd. v. Asha Rani & others [2002 AIR SCW 5259] referred M.A.C.A.No. 623/2006 -2- to a decision of the Full Bench decision of this Court reported in Oriental Insurance Co. Ltd. v. Ajayakumar [1999 (2) KLT 886] and passed a verdict. The decision in Asha Rani's case is of a binding nature and when it is not proved that the person travelling in the goods vehicle is the owner accompanying the goods or the representative of the owner of the goods, the Insurance Company cannot be saddle with the liability. It is clear from the averments in para 28 of the petition that the pleaded case of the claimant is that he was travelling in the goods vehicle for returning back to his house as a passenger and not otherwise. Therefore the decision rendered by the tribunal is erroneous in the light of the binding decision of the apex court in Asha Rani's case and therefore it is liable to be corrected and I do so. Therefore the appeal is allowed and the Insurance Company is totally exonerated from the liability and the claimant is at liberty to proceed against respondents 1 and 2 in the claim petition jointly and severally for the realisation of the award amount. The M.A.C.A is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm