Point of law: Motor Accident claim - status of the petitioner already found as a gratuitous passenger and therefore the company has no liability to indemnify the insured and as such the company is entitled to get exoneration from liability.

JUDGMENT :

A. BADHARUDEEN, J.

1. This appeal emanates by way of challenge against award in O.P. (MV) No. 1158/2008 dated 27.04.2012 on the file of the Motor Accident Claims Tribunal, Ernakulam at the instance of the original 3rd respondent M/s. Reliance General Insurance Company Ltd. The respondents herein are the minor petitioner as well as original respondents 1 and 2 before the Tribunal.

2. The appellant herein is aggrieved in the matter of disallowing exoneration from liability, after holding that the original petitioner/1st respondent herein was a gratuitous passenger in a goods autorickshaw.

3. Heard both sides.

4. It is argued by the learned counsel for the appellant that the Tribunal negatived the contention raised by the Insurance Company to grant full exoneration without rationale though the 1st respondent/original petitioner was travelling in the goods autorickshaw involved in the accident, after sharing the seat of the driver as a gratuitous passenger. It is submitted by the learned counsel for the appellant further that the Tribunal also found that the injured would not cover under the terms of policy being a gratuitous passenger in a goods autorickshaw. At the same time, the Tribunal directed the insurance company to deposit the same and recover the same from the owner of the vehicle.

5. The above finding of the Tribunal is mainly under challenge in this appeal.

6. While addressing the above issue, it is necessary to have a glimpse on the facts of this case. In fact, a minor aged 14 years, who sat near the driver's seat of a goods autorickshaw bearing Registration No. KL-7BD-2739, sustained injuries when the autorickshaw overturned due to the rash and negligent driving of the 2nd respondent, the driver of the goods autorickshaw.

7. The insurance company filed written statement and resisted the contentions raised by the petitioner. A specific contention was raised in the written statement to the effect that the petitioner/injured was a gratuitous passenger in a goods vehicle and therefore he was not covered under the policy.

8. The Tribunal after examining PW-1, marking Exts.A1 to A17 and X1, awarded Rs. 1,89,052/- as against claim of Rs. 2,50,000/-. Thereafter, in para.9 of the award the Tribunal, after referring Ext.A16 copy of first information statement led to registration of Crime No. 7184/2007 of Kochi City Traffic Police Station led to filing of Ext.A2 charge sheet, it was observed that at no stretch of imagination the court could endorse the case of the claimant that he was travelling in the autorickshaw as a head-load worker for loading or unloading any material and in such circumstances, especially the claimant was an 8th std. student at Tamil Nadu during the time of accident. It was further observed by the Tribunal that the 1st respondent, the owner of the vehicle, did not turn up and accordingly the Tribunal held that the claimant minor boy was taken for a ride in the goods autorickshaw and therefore the risk of the minor was not covered by the terms of the policy marked as Ext.A6.

9. Nothing argued from the side of the respondents in this appeal to substantiate that the above finding of the Tribunal is wrong.

10. While evaluating the pleadings and evidence in this case to ascertain the status of the minor in the goods autorickshaw, it could be gathered from para-28 of the original petition that the minor petitioner sat near driver's seat of the goods autorickshaw bearing Reg. No. KL-7BD-2739 which was proceeding to Ernakulam from a godown at Eroor to Broadway, Ernakulam along the Sahodaran Ayyappan road for the purpose of unloading goods from the autorickshaw. Thus the claimant put up a case that he shared the seat of the goods autorickshaw driver for the purpose of unloading goods. The minor filed proof affidavit and reiterated the contentions in the petition to the effect that the minor travelled in the goods autorickshaw to unload goods. Minor got examined as PW-1. When he was cross examined, he stated that h