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2024 Supreme(Ker) 1177
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Johnson John, J.
Hariharan.V.V, S/O. Vasu And Ors. – Respondents
Versus
Pailoth, S/O. Ouseph And Ors. – Respondents
MACA NO. 352 OF 2018
Decided On : 07-11-2024
Advocate Appeared:
For the Petitioner: Sri.Sheji P.Abraham & Abraham Joseph
For the Respondent: Sri.Thomas Mathew Nellimoottil
IMPORTANT POINT
The insurance policy must cover the deceased as a spare driver, and the Tribunal's exoneration of the insurance company was unjustified.
Headnote:
(A) Motor Vehicles Act, 1988 – Section 90 – Compensation for death in motor accident – The Tribunal awarded Rs.14,97,960/- to the petitioners, exonerating the insurance company from liability. The court found the deceased was a spare driver, thus entitled to coverage under the policy. The monthly income was reassessed to Rs.10,000/- for compensation calculation. The final compensation was modified to Rs.18,04,660/- with interest at 9%. (Paras 10, 12, 14)
(B) Insurance Liability – The insurance policy must cover the risk of the deceased as a spare driver, and the Tribunal's exoneration of the insurance company was unjustified. (Paras 10, 11)
(C) Compensation Calculation – The court applied the principles from various Supreme Court decisions to reassess the compensation for loss of dependency and conventional heads. (Paras 12, 13)
Facts of the case :
The deceased, a spare driver, died from injuries sustained in an accident involving a lorry. The insurance company denied liability, claiming the deceased was a gratuitous passenger.
Findings of Court :
The court found the insurance company liable and modified the compensation amount.
Issues : The main issues were the liability of the insurance company and the calculation of compensation.
Ratio Decidendi : The court ruled that the insurance policy covered the deceased as a spare driver, and the Tribunal's decision to exonerate the insurance company was incorrect.
Result : Appeal allowed, compensation modified to Rs.18,04,660/-.
JUDGMENT :
Johnson John, J.
Appellants are the petitioners in OP(MV) No.592 of 2015 on the file of the Motor Accident Claims Tribunal, Ottappalam and they are challenging the quantum of compensation awarded by the Tribunal under various heads and also the exoneration of the insurance company from liability as per the impugned award.
2. The appellants are the legal heirs of the deceased Nithin, who was travelling as a spare driver in lorry bearing registration No.KL 08 E 9664 driven by the first respondent, owned by the second respondent and insured with the third respondent. According to the petitioners, because of the rash and negligent driving of the first respondent, the lorry hit against another lorry bearing registration No.GJ 01 BY 6005 when it reached Shahapura in Karnataka at about 5.00 p.m., on 22-01-2014. The deceased, who sustained fatal injuries succumbed to the injuries on 04-12-2014.
3. The third respondent/insurance company contended in the original written statement that the deceased was travelling as a spare driver in the goods vehicle and the policy issued will cover the liability of only one driver and therefore, the third respondent is not liable to pay any compensation to the petitioners. In the additional written statement, the third respondent contended that the deceased was travelling in the goods vehicle as a gratuitous passenger and the policy will not cover a gratuitous passenger as no additional premium was collected to cover the liability of a gratuitous passenger.
4. According to the petitioners, the deceased was a driver, aged 26 years having an income of Rs.20,000/- per month at the time of the accident.
5. Before the Tribunal, Exts.A1 to A11 were marked from the side of the petitioners and from the side of the third respondent, RW1 was examined and Exts.B1 to B5 were marked. After trial and hearing both sides, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the first respondent and awarded a total compensation of Rs.14,97,960/- to the petitioners. The Tribunal found that the third respondent/insurance company has no liability as the policy does not cover a spare driver and therefore, exonerated the third respondent and allowed the petitioners to recover the compensation amount from respondents 1 and 2.
6. Heard Sri.Sheji P.Abraham, the learned counsel for the petitioners and Sri.Thomas Mathew Nellimoottil, the learned counsel for the third respondent.
7. The learned counsel for the appellants pointed out that as per Ext.B4 policy of insurance, it can be seen that the insurance company collected Rs.100/- towards "Add LL to paid driver, conductor, cleaner employed for oprn". The copy of the certificate of registration of the offending vehicle is marked as Ext.B2. Assistant Manager of the third respondent insurance company is examined as RW1. It is pertinent to note that there is nothing in the chief affidavit of RW1 to show that the deceased was a gratuitous passenger in the goods vehicle. According to RW1, the company denied the liability as the deceased was a spare driver and if the deceased was travelling as a cleaner in the vehicle, he would be entitled for the benefit of the policy issued in this case.
8. The learned counsel for the appellants invited my attention to Section 90 in the Central Motor Vehicles Rules, 1989 to point out that the national permit lorry shall have a minimum of two drivers and shall be provided with a seat across its full width behind the drivers seat providing facility for the spare driver to stretch himself and sleep. Section 90 in the Central Motor Vehicles Rules, 1989 reads thus :
"90. Additional conditions for national permit.
"The national permit issued under sub-section(12) of section 88 shall be subject to the following additional conditions, namely:
(1)[All motor vehicles other than a trailer or modular hydraulic trailer] [Inserted by Notification No. G.S.R. 212 (E) dated 20.3.2015 (w.e.f. 1.4.2015)] plying under a nat
