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HIGH COURT OF KERALA
SOPHY THOMAS, J
NEW INDIA ASSURANCE CO.LTD – Appellant
Versus
SARASWATHY, – Respondent
MACA 2266 2010
Insurance - Motor Vehicle Incident - Motor Vehicles Act, 1988 - Sections 147, 167 - The court interpreted provisions of the Motor Vehicles Act, specifically Section 147, regarding the liability of insurers for passengers in goods vehicles, emphasizing that gratuitous passengers are not covered under the policy, which directly influenced the dismissal of the insurer's appeal.
Fact of the Case:
A loading worker died in a motor accident while traveling in a goods vehicle. His legal heirs claimed compensation from the insurer. The insurer contended that the deceased was a gratuitous passenger, thus not covered under the insurance policy.
Finding of the Court:
The court established that the deceased was not an employee of the lorry but rather a gratuitous passenger, which is not covered by the insurance policy. The Tribunal's award was based on insufficient evidence of employment.
Issues: Whether the deceased was an employee entitled to compensation under the insurance policy or merely a gratuitous passenger not covered by that policy.
Ratio Decidendi: The court emphasized that under Section 147 of the Motor Vehicles Act, gratuitous passengers in goods vehicles are not covered for insurance claims, reinforcing interpretations from leading case laws.
Final Decision: The appeal was dismissed, upholding the original Tribunal's award.
J U D G M E N T
The 2nd respondent/insurer in OP (MV) No.1221 of 2003 on the file of Motor Accidents Claims Tribunal, Attingal is the appellant herein, challenging the award dated 02.01.2010 on the ground that a gratuitous passenger in a goods vehicle was not covered by the policy, and hence the legal heirs were not entitled to get compensation on his death.
2. The facts in brief are as follows:
Sri.Shanmugha Raja, a 28 year old man, succumbed to the injuries in a motor accident occurred on 28.06.2003. The deceased was travelling inside the cabin of a lorry bearing registration No. TN-72/Z-5494 as a loading worker. The lorry was driven by the 6th respondent-Sri.Subramaniyan. When the lorry reached near Azhicode, due to his rash and negligent driving, it took a right turn recklessly and Sri.Shanmugha Raja was thrown out of the cabin. While he was lying on the road, the lorry ran over him and he sustained severe fatal injuries. Though he was rushed to the hospital, he succumbed to the injuries on the same day. Respondents 1 to 5 are the wife, children and parents of the deceased. They approached the Tribunal claiming compensation of Rs.8 lakh. The Tribunal, on finding that the deceased was an employee of the insured, as a loading and unloading worker, and also on finding that as per Ext.B1 policy, the insured had paid premium of Rs.50/- for two employees, awarded compensation of Rs.3,59,500/-. The insurer is challenging that finding as well as the award, contending that the deceased was only a gratuitous passenger in a goods vehicle and so, the Insurance Company was not liable to indemnify the insured, as the policy will not cover a gratuitous passenger in a goods vehicle.
3. Before the Tribunal, no oral evidence was adduced from either side. Exts.A1 to A4 were marked from the side of the claimants and Ext.B1 policy copy was marked from the side of the insurer.
4. Pending appeal, the 4th respondent-father of the deceased passed away. His legal heirs were impleaded as additional respondents 7 to 9.
5. The 2nd respondent, who is the son of the deceased, entered appearance and filed vakalath. The 8th respondent was duly served with notice but she opted to remain absent. With respect to respondents 1, 3, 5, 6, 7 and 9, substituted service was effected through paper publication. But they remained absent.
6. Now let us see whether the impugned award is liable to be set aside, as prayed for in the appeal.
7. Heard learned counsel Sri.Rajan P Kaliyath, appearing for the appellant/insurer and learned counsel Sri.R.T Pradeep, appearing for the 2nd respondent/2nd claimant.
8. Admittedly, Sri.Shanmugha Raja, aged 28 years, sustained fatal injuries in a road traffic accident occurred at 8 p.m on 28.06.2003 at Nedumangad-Karakulam public road, and he succumbed to the injuries on the same day. It is also an admitted fact that the deceased was travelling in the cabin of the lorry bearing registration No.TN-72/Z-5494. It is also not in dispute that the lorry was a goods vehicle. Ext.B1 policy shows that the said vehicle was duly insured with the appellant as on the date of accident and premium was paid to cover two employees, specifying that they are to be compensated under the Workmen’s Compensation Act (At present Employees’ Compensation Act).
9. The respondents 1 to 5/the claimants filed the claim petition before the Tribunal contending that the deceased was travelling inside the cabin of the lorry as a loading and unloading worker and so, the insurer was liable to honour their claim, as the deceased also was covered by the policy. But, the appellant would contend that the deceased was only a gratuitous passenger in that lorry, which was a goods vehicle and so, on his death, his legal heirs were not eligible to get compensation, as he was not covered by the policy.
10. Learned counsel for the appellant invited attention of this Court to Ext.A1 FIR in Crime No.379 of 2003 of Nedumangad Police Station, registered for the death of Sri.Shanmugha Raja in t
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