Allowed

P.K. Dasan v. Manikandan R

Kerala HC15 Jul 2022MACA/711/2018

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Motor Accident Claims Tribunal's order. It set aside the Tribunal's finding that required the injured passenger to prove representation capacity. The Court held the claimant was covered under the liability policy as a representative of the charterer, who had paid the additional premium for cabin travel.

What did the court decide?

This M.A.C.A. is allowed; the Tribunal's liability finding is set aside; the insurer is liable to indemnify the compensation amount.

P.K. Dasan Vs Manikandan R — Insurance | Kerala HC (2022)

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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 C. JAYACHANDRAN

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FRIDAY, THE 15^TH DAY OF JULY 2022 / 24TH ASHADHA, 1944

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MACA NO. 711 OF 2018

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AGAINST THE ORDER/JUDGMENTOPMV 942/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD

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APPELLANT/RESPONDENT NO.1:

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P.K. DASAN AGED 1 YEARS S/O KARUNAN, PANAKKAL VEEDU, CHETTIYAMPARAMBA, KELAKKARA VIA, KANNUR-670674 (RC OWNER OF VEHICLE KL-13-P-1874) BY ADV SRI.CIBI THOMAS

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RESPONDENTS/PETITIONER AND RESPONDENTS 2 TO 4:

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1 MANIKANDAN R S/O RAMASWAMY (LATE), BOOTHIVAZHI OORU, AGALI PO, ATTAPPADY, PALAKKAD 2 RIJESH S/O JAYARAJAN, MANDEIYEAL VEEDU, THILANOOR, THAZHEACHOVVA PO, KANNUR-670018 (DRIVER OF VEHICLE REG NO KL-13-P-1874) 3 UNITED INDIA INSURANCE COMPANY MALABAR FOR BUILDING, GB ROAD, PALAKKAD 4 ANIL KUMAR A S/O REJINOLD, ASHIRVAD VEEDU, THAZHECHOVVA POST, KANNUR 670018 BY ADVS. SRI.JOHN JOSEPH VETTIKAD SMT.K.K.CHANDRALEKHA SRI.K.KESAVANKUTTY SRI.K.C.SANTHOSHKUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.No.711 OF 2018

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JUDGMENT

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Dated this the 15^th day of July, 2022

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This appeal is carried on the solitary ground that exoneration of the third respondent Insurance Company, on the finding that Ext.B1 is a liability only policy and that the injured, who was a gratuitous passenger is not liable to be compensated, is illegal and unsustainable.

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Heard Sri.Cibi Thomas, learned counsel for the appellant and Sri.John Joseph Vettikad, learned counsel for the 3^rd respondent. There is no representation for the 1^st respondent/claimant before this Court.

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Going by the admitted case, the claimant/1st respondent was traveling in a tempo van, along with few others for carrying coconut to Agali. The claimant/1^st respondent as well as two others were employed by one Sekhar to carry the coconut to Agali, which was loaded in the tempo van. The van overturned since the driver of the tempo lost control of the vehicle, causing injuries to the claimant/1st respondent. He was initially treated in the Government Tribal Hospital, Kottathara and later, at the Medical College Hospital, Thrissur. The accident occurred due to the rashness and negligence on the side of the 2^nd respondent/driver.

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M.A.C.A.No.711 OF 2018

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In paragraph 18 of the impugned order, the Tribunal found that Ext.B1 is a liability only policy in favour of the appellant/1st respondent. Thus a sum of Rs.75/- was paid as additional premium for a non-employee traveling in the cabin of a vehicle; and that the policy, in page No.7, admits that the company is liable for a person, not being the employee of the insured, who travels in the vehicle being the representative of the charterer of the truck. The learned Tribunal also found that if the petitioner is accompanying the goods as the representative of his employer, he will be covered by the policy. However, in paragraph No. 19 of the judgment, the learned Tribunal found that the details of the 1^st respondent/claimant is not available, except that he is a head load worker traveling in the vehicle, after loading tender coconut. The learned Tribunal found fault with the petitioner for not mounting the box to speak about his capacity as representing anybody and accompanying the goods on behalf of the employer. The final report does not disclose the aspect as to whether the claimant/1st respondent was traveling as a representative of the charterer of the vehicle. In so far as the FIS is concerned, the learned Tribunal found dichotomy between the beginning portion of the FIS and its end. The Tribunal found that in the beginning portion, the claimant./1st respondent would state that he was going to load tender coconut, whereas towards the end, he would state that he

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M.A.C.A.No.711 OF 2018

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was traveling in the vehicle after loading tender coconut. Thus in the absence of evidence, the Tribunal found that the claimant/1st respondent failed to establish that he is entitled to insurance as the person mentioned, for whom additional premium of Rs75,/- is paid.

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Having heard the learned counsels appearing on both sides, this Court finds it difficult to endorse the findings of learned Tribunal. Primarily, this Court finds no dichotomy as between the beginning and end of Ext.A2 FIS. The FIS would disclose that on 13.12.2011, the claimant, along with one Chandran and Balan, travelled in a tempo for loading tender coconut from Bhoothivazhi to Kottathara. He also stated that at that time, one Murugan, Mylan and one Sekhar (who had hired the services of the claimant Murugan and Mylan for transporting tender coconut) were there in the tempo van, apart from the driver. The FIS proceeds to state that they have loaded tender coconut from the old bus stand at Kottathara and proceeded to Agali. When the tempo reached in front of a hospital in Kottathara, the vehicle overturned, at which time, the claimant Mylan and Murugan were inside the cabin of the tempo van. A reading of the FIS would indicate that one Sekhar had hired the services of the claimant and two others for transporting coconut to Agali, that they have loaded the tender coconut from the old bus stand at Kottathara and were proceeding

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M.A.C.A.No.711 OF 2018

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towards Agali and that the vehicle overturned when it reached in front of a hospital, the name of which is not clearly decipherable from Ext.A2 FIS. This Court finds no dichotomy between the beginning and end portions of Ext.A2 FIS. It is clear that the claimant and two others were persons employed by one Sekhar, who had hired the tempo van, admittedly a vehicle licensed to carry goods. This Court, therefore, finds that the claimant/1st respondent herein is a representative of the said Sekhar, who chartered the truck for a trip, thus squarely coming within the sweep of the liability made mention of in page No.7 of the Policy. The additional premiu m of Rs.75/- is paid to cover the representative, who traveled in the cabin of the vehicle. The claimant/ 1^st respondent herein is not an employee of the owner of the vehicle. The additional premium levied is obviously to cover a person who travels along with the driver in the tempo van. This Court, therefore, finds that the finding of the Tribunal that the claimant/1st respondent is not entitled to the benefit of Ext.B1 policy cannot be sustained and the same is therefore, set aside.

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The claim espoused by the claimant/1st respondent is perfectly in tune with Ext.A2 FIS. Faced with the situation, learned counsel for the 3^rd respondent Insurance Company contended that there is violation of policy conditions, in as much as it is established that as many as three persons were

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M.A.C.A.No.711 OF 2018

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accompanying the driver in the cabin of the tempo van. It is true that the said fact is specifically referred to in Ext.A2 FIS. However, no contention is seen taken in the written statement preferred before the Tribunal to the effect that there is violation of policy condition on account of excess number of passengers in the tempo van. This Court is therefore, not inclined to entertain such a contention, which is being raised for the first time in this appeal.

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In the circumstances, this M.A.C.A. is allowed and the liability which was found by the learned Tribunal is declared to be joint and several as between respondents 1, 2 and 3 in the Original Petition. In other words, the third respondent, being the insurer, is liable to indemnify the compensation amount as quantified by the Tribunal by the insured, which is hereby clarified.

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Sd/- C. JAYACHANDRAN

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JUDGE

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P.K. Dasan v. Manikandan R

Case brief

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P.K. Dasan v. Manikandan R

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