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2025 Supreme(Online)(KER) 374
HIGH COURT OF KERALA
JOHNSON JOHN, J
THANKACHAN – Appellant
Versus
SAKUNTALA ROY – Respondent
MACA 399/2021
Insurance companies are not liable for compensation claims involving gratuitous passengers under 'act only policies', emphasizing the importance of clear pleadings regarding the passenger's status.
Headnote:(A) Motor Vehicles Act, 1988 - Sections 147 and 149 - Compensation in motor accident case - The Tribunal directed the insurance company to pay compensation to the claim petitioners and recover from the vehicle owner; however, this was found erroneous as the deceased was a gratuitous passenger - The insurance policy did not cover such passengers, leading to the dismissal of the insurance company's appeal. (Paras 4, 11, 13, and 14)
(B) Insurance Liability - The insurance company cannot be held liable for a gratuitous passenger under an 'act only policy' - The court emphasized the need for clear pleadings regarding the deceased's status as a representative of the goods owner, which was absent in this case. (Paras 6, 8, and 10)
Facts of the case:
The claim petitioners, relatives of the deceased, argued that he died due to negligence while travelling as a passenger in a goods vehicle. The Tribunal awarded compensation based on findings of negligence against the driver.
Findings of Court:
The court found that the direction for the insurance company to pay compensation was erroneous as the deceased was a gratuitous passenger, not covered by the policy.
Issues: The main issues included the liability of the insurance company and the status of the deceased as a passenger or representative of the goods owner.
Ratio Decidendi: The court ruled that the insurance company was not liable for a gratuitous passenger under the existing policy, emphasizing the necessity for proper pleadings to support claims of representation.
Result: M.A.C.A. No. 399 of 2021 is dismissed and M.A.C.A. 1200 of 2020 is allowed.
The 2nd respondent— owner of the vehicle and the 3rd respondent insurance company in O.P.(MV) No. 668 of 2016 on the file of the Motor Accident Claims Tribunal, Kollam filed these appeals challenging the order of the Tribunal directing the 3rd respondent insurance company to pay the compensation to the claim petitioners and thereafter, to recover the same from the 2nd respondent owner of the vehicle.
2. The claim petitioners are the legal heirs of the deceased Amal Roy, who died in a motor vehicle accident occurred on 18.12.2015. According to the claim petitioners, the deceased was travelling in the mini lorry driven by the 1st respondent in a rash and negligent manner and he lost his control over the vehicle and hit against another lorry parked on the side of the road and thereby, the deceased sustained grievous injuries and subsequently succumbed to his injuries.
3. Before the Tribunal, respondents 1 and 2 were ex parte. From the side of the petitioners, Exhibits A1 to A9 were marked and from the side of the 3rd respondent, Exhibit B1 was marked.
4. After trial and hearing both sides, the Tribunal found that the accident occurred because of the negligence on the part of the 1st respondent and awarded a total compensation of Rs.24,16,672/- to the claim petitioners. The Tribunal also recorded a finding that even if the deceased is considered as a gratuitous passenger, the insurer cannot be exonerated from liability and therefore, directed the insurance company to pay the compensation to the petitioners and thereafter, to recover the same from the owner of the vehicle.
5. Heard both sides and perused the records.
6. The learned counsel for the appellant insurance company argued that the deceased was a gratuitous passenger in the goods vehicle and he is not covered by the ‘act only policy’ and therefore, the Tribunal ought to have exonerated the appellant insurance company.
7. The learned counsel for the owner of the vehicle, the appellant in the connected appeal, argued that the finding of the Tribunal that the offending vehicle was not having a valid fitness certificate as on the date of the accident, is erroneous and the same is without considering Exhibit A6 report of the Motor Vehicle Inspector. It is also argued that the deceased was not a gratuitous passenger and that he was the representative of the owner of the goods transported in the vehicle and that after 1994 amendment, the insurance company is liable to pay compensation to the owner of the goods or his representative travelling in a goods vehicle.
8. The learned counsel for the insurance company pointed out that there is no averment in the claim petition that the deceased was the representative of the owner of the goods transported in the vehicle. In column No. 28 of the claim petition, it is only stated that the deceased was travelling in the mini lorry as a labourer and the claim petitioners have no case that the deceased was the representative of the owner of the goods transported in the vehicle. It is also pertinent to note that before the Tribunal, the owner of the vehicle remained ex parte and no written statement was filed. In that circumstance, the argument raised now on behalf of the owner of the vehicle that the deceased was his representative and he was accompanying his goods transported in the vehicle cannot be accepted at this stage, in the absence of any pleadings and evidence in this regard.
9. The Tribunal relied on the decision of the Honourable Supreme Court in Manuara Khatun & others vs Rajesh Kr. Singh & others [2017 KHC 6151 =2017 ACJ 1031] for directing the insurance company to pay the award amount to the claim petitioners, and thereafter to reimburse the same from the owner of the vehicle. In the absence of any pleadings or evidence to prove that the deceased was the owner of the goods or repetitiveness of the owner of the goods, it can only be found that he was a gratuitous passenger in the goods vehicle at the time of the accident.
10. A p
