Point of Law : Illegal transportation of sand - There is no convincing evidence available to justify contention raised by learned counsel for insurance company as such - Learned Tribunal rightly disallowed either exoneration or right of recovery claimed by company for above reasons - Therefore said finding cannot be interfered at all. Consequently, award as such is liable to be confirmed.

JUDGMENT :

The original 3rd respondent M/s. United India Insurance Company in O.P.(MV). No.1424/2011 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta is the appellant herein. Liability fastened on the Insurance Company by the learned Tribunal is the matter under challenge in this appeal where the original petitioners as well as respondents 1 and 2 were arrayed as the respondents herein.

2. I would like to refer the parties in this appeal as petitioners and respondents for brevity and convenience.

3. Epitomized form of the material facts in this case:

One K.Eliyas died in a motor accident occurred on 10.4.2011 at about 8.30 p.m. while he was travelling in a truck bearing Registration No.KL.06.C.2259 driven by the 2nd respondent in a rash and negligent manner. The legal heirs viz., wife and children, filed application under Section 166 of the Motor Vehicles Act and claimed Rs.50 lakh as compensation.

4. First and second respondents filed written statement and opposed the narration of the accident as alleged by the petitioners. According to them, the deceased was a pedestrian on the road, who was hit down by the vehicle which resulted in his death.

5. The 3rd respondent insurance company filed written statement and admitted the policy. But the liability to pay compensation was disputed on the ground that the offending vehicle was used for illegal transportation of sand and Police laid charge under Sections 279 and 304 of I.P.C as well as under Sections 20 and 21 of the Kerala River Bank Protection (KRBP) Act.

6. The learned Tribunal adjudicated the matter on merits and finally awarded Rs.7,05,448/- as compensation with 9% interest. The amount was ordered to be paid by the insurance company being the insurer of the offending vehicle.

7. The core issue in this matter is denial of exoneration sought for by the insurance company/3rd respondent on the ground that the vehicle was used for illegal transportation of sand and the deceased travelled in the vehicle as a person accompanying illegal sand. Therefore, the company has no liability to indemnify the insured is the crux of the contention.

8. In support of this contention, the learned counsel for the insurance company placed reliance on the decisions reported in [2003 (1) KLT 955], National Insurance Co. Ltd. v. Saidali, [2011(2) KHC 320], New India Assurance Company Ltd. v. Jameela & Ors. And [2020(4) KHC 623], Soman v. Jinesh James & Ors..

9. On perusal of the decision in Saidali (supra), the ratio of the decision is that after the amendment to Section 147(1)(a)(i) of the Motor Vehicles Act, 1988 it brought the owner of the goods or the representative of the owner of the goods carried in the goods vehicle within the coverage of act only policy. But this decision is silent as to illegal transport of goods. Similarly, in Jameela’s case (supra) also, the ratio is confined to the point that risk of the person who died or sustained injury as the owner of the goods or the representative of the owner of goods is covered by the insurance policy issued under S.147 of the Motor Vehicles Act and that a person continues to be the owner of the goods or representative of owner of goods even while returning after unloading goods.

10. The subject matter dealt in Jinesh James’s case (supra) is totally on a different footing and the same has no relevance to the point in issue.

11. The learned counsel for respondents 1 and 2, the insured and the driver, argued that the deceased is not a traveller in the goods vehicle and he is a pedestrian. Therefore, the policy issued by the company would cover the risk of the deceased. In fact, this contention is not supported by any evidence and the evidence available would go to show that the deceased was travelling in the offending vehicle at the time of accident after carrying sand.

12. The learned counsel for the petitioners pointed out that no evidence is available in this matter to hold that the vehicle was engaged in transport of illegal sand at the t