Partly allowed

Noby Rozario v. Heldin Hentry M.H

Kerala HC10 Jan 2013MACA/1618/2011

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the insurance company's appeal, setting aside the direction for the Tribunal to seek compensation from the owner-driver. It directed the insurer to pay the claimant first and then recover the amount from the owner, applying the 'pay and recover' principle from United India Insurance Co. v. Suresh.

What did the court decide?

Direction to the insurance company to pay compensation to the claimant and recover the amount from the owner-driver.

Noby Rozario Vs Heldin Hentry M.H — Consumer Protection | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID

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THURSDAY, THE 10TH DAY OF JANUARY 2013/20TH POUSHA 1934

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MACA.No. 1618 of 2011 (C)

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AGAINST THE AWARD DTD. 30.12.2010 IN OPMV.394/2004 OF THE M.A.C.T., ERNAKULAM

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APPELLANT/PETITIONER:

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NOBY ROZARIO, AGED 43 YEARS, S/O.LATE VINCENT ROZARIO, KUZHUPPILLY HOUSE MANJUMMEL P.O., ELOOR VILLAGE, PARUR TALUK ERNAKULAM DISTRICT.

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BY ADVS.SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.G.ARUN GOPAN

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RESPONDENT/RESPONDENTS:

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HELDIN HENTRY M.H., S/O.M.J.HENTRY, MADATHIPARAMBIL HOUSE, MANJUMMEL P.O., UDYOGAMANDAL PIN 683 501.

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THE UNITED INDIA INSURANCE COMPANY LIMITED,KALAMASSERY,KOCHI-683 104.

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R2 BY ADV. SRI.P.SANKARANKUTTY NAIR

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BY SRI.JOHN JOSEPH VETTIKAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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HARUN-UL-RASHID, J.

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M.A.C.A.No.1618 Of 2011

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Dated this the 10^th day of January, 2013.

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J U D G M E N T

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The claimant is the appellant. The appeal is directed

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against the judgment and decree in O.P(M).No.394/2004 on the file of the Additional M.A.C.T., Ernakulam.

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The claimant claimed Rs.31,000/- as compensation for

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the personal injuries sustained by him in the motor vehicle accident that happened on 16.1.2004. The 1^st respondent in the claim petition is the owner-cum-driver and the 2^nd respondent, the insurer of the offending vehicle. The 1^st respondent remained ex-parte before the Tribunal as well as this Court. The insurance company filed written statement and contested the case.

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The claimant hired the offending petty autorickshaw (KL-07-AD-3195) for carrying advertising boards from Tripunithura to Manjummel. The claimant's case is that the petty autorickshaw was loaded with advertisement boards and the claimant was travelling in the petty autorickshaw as the owner of the goods carried. It is alleged that due to over speed and

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M.A.C.A.No.1618 Of 2011

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rashness on the part of the 1^st respondent the petty autorickhaw went off side and hit against a bus (KL-07-AG-8022), which was coming from the opposite direction, and thereby the autorickshaw toppled down. In the accident the claimant sustained severe injuries. He was taken to the hospital and treated as inpatient.

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The claimant relied on Exts.A1 to A6 documents.

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Ext.A1 is the copy of the FIR, A2 Scene Mahazar, A3 charge sheet, A4 copy of the Register-cum-wound certificate, A5 treatment certificate issued by the Ernakulam Medical Centre and Ext.A6 are the medical bills.

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The insurance company contended that the claimant was travelling in the petty autorickshaw as a gratuitous passenger by sharing the seat of the driver that the seating capacity of the vehicle is only one and therefore, it is contended that the insurance company is not liable to indemnify the owner. The Tribunal found that the 1^st respondent is liable and directed the 1^st respondent to deposit the compensation. After considering the evidence on record, the Tribunal found that the

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M.A.C.A.No.1618 Of 2011

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claimant is entitled to recover Rs.34,047/- as compensation with interest @ 7.5% per annum. The appellant submitted that assuming, without admitting, that the appellant was a gratuitous passenger, even then the dictum laid down in United India Insurance Company Ltd. v. Suresh (2008(4) KLT 522) prescribes that the insurance company should compensate the hapless victim and recover the same from the owner of the vehicle and that the principle of “pay and recover” ought to have been adopted. It is also submitted that the appellant had a consistent case right from the beginning that he was travelling in the vehicle as owner of the goods carried in the said vehicle. His testimony was no discredited in cross-examination and that not contra evidence was adduced by the contesting respondent and therefore, it is contended that the finding of the Tribunal that the appellant was a gratuitous passenger is liable to be interfered with.

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The Apex Court in the decision referred supra held as

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follows:

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M.A.C.A.No.1618 Of 2011

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“On a plain reading of sub-cl.(1) of cl.(b) of sub-s. (1) of S.147, the words “carried in the vehicle” must be held to be qualifying “owner of the goods” or “his authorised representative”. The term 'any person' envisaged under the said provision shall not include any gratuitous passenger. If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved.”

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The facts in the present case and in the decision referred supra is

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more or less the same. The claimant in the said case was a coolie worker who hired an autorickshaw which is a goods carriage vehicle. The accident occurred when he was sitting by the side of the driver. The accident happened while the claimant was travelling in the said autorickshaw and he sustained severe injuries. Taking into consideration the facts and circumstances of the case including the fact that the claimant was accompanying the goods in a petty autorickshaw, the Apex Court held that with

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M.A.C.A.No.1618 Of 2011

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a view to do complete justice between the parties, a direction should be given to the appellant to pay the amount to the claimant and realise the same from the owner of the vehicle. It was held that such a direction would, in our opinion, serve the ends of justice. The facts and circumstances of this case is more or less the same. Therefore, this Court is of the view that a similar direction as stated above shall serve the ends of justice.

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In the result, the direction issued by the Tribunal directing the 1^st respondent to deposit the compensation is set aside. There will be a direction to the 2^nd respondent insurance company to pay compensation amount to the claimant and realise the same from the owner of the vehicle, who is the 1^st respondent herein. In all other respects the award shall stand.

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HARUN-UL-RASHID, Judge.

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bkn/-

Noby Rozario v. Heldin Hentry M.H

Case brief

What is this about?

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Noby Rozario v. Heldin Hentry M.H

Case brief

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