Goods Vehicle; United India Insurance Vs. Pappu [Kerala High Court, 06-01-2011]

Motor Vehicle Act, 1988 – Section 147 – Whether an autorickshaw driver can carry another person in the goods autorickshaw? Held, materials shows that two persons are permitted to be carried in the vehicle. As per the registration certificate the seating capacity including the driver is shown as two in numbers. So one person other than the driver is entitled to travel in the cabin. When it is so, the question of sharing the driver’s seat does not arise.

# Goods Vehicle

Section 166 – Appreciation of Evidence – Wound Certificate – Wound certificate cannot be taken as a conclusive material, especially when witnesses and the investigating agency had stated how the accident had taken place.

# 2011 (1) KLT 922 : 2011 (1) KLJ 341 : 2011 (2) RCR (Civil) 500

IN THE HIGH COURT OF KERALA AT ERNAKULAM

The Hon’ble MR. Justice M.N.KRISHNAN

Dated this the 6th day of January, 2011

MACA.No. 376 of 2010()

UNITED INDIA INSURANCE COMPANY LTD. … Petitioner Vs P.O. PAPPU AND OTHERS

For Petitioner :SRI.SIBY MATHEW

For Respondent :SRI.V.K.GOPALAKRISHNA PILLAI

J U D G M E N T

This is an appeal preferred against the award of the Claims Tribunal, Perumbavur in OP(MV) No.360/2004. The claimant sustained injuries and the Tribunal has awarded him a compensation of Rs.31,700/- and directed the Insurance Company to pay the amount. It is against that decision the Insurance Company has come in appeal challenging these liability as well as the very accident.

Heard the learned counsel for the appellant as well as the respondent.

The learned counsel for the Insurance Company would contend that as per the wound certificate and other case records the cause of injury is given as on account of overturning a tempo van. It is also contended that the First Information Report was registered only in 2004 and therefore, there is no explanation for the delay. On the other hand, learned counsel for the claimant would contend that the claimant is a 53 year old man and he do not have much idea about the vehicles. Originally he was admitted as an out patient in the hospital and subsequently, when it aggravated he was readmitted. On 30-07-2003 itself he has preferred a private complaint before the Magistrate Court giving the correct description of the vehicle involved which was an autorickshaw. It is true that it took a long time Court and the authorities to act upon and register the crime. Subsequently, a charge sheet has also been filed. So the investigating part of the case done by the investigating agency, would point out that the vehicle involved was an auto rickshaw and it overturned resulting in the accident. The mere recital in the wound certificate cannot be substitute for evidence and no other materials are forthcoming to substantiate the contention raised by the Insurance Company. On the other hand, the claimant had examined himself as PW1 and also PW2. These two witnesses support the case of the claimant with respect to the involvement of the autorickshaw in the accident. So the only piece of document which may go against the claimant is the recital in the wound certificate. It cannot be taken as a conclusive material, especially when PW1 and PW2 and the investigating agency had stated how the accident had taken place. Therefore, I am not prepared to accept the contention of the Insurance company regarding the fact that the accident took place when the tempo van overturned. I do not find any reason to interfere with the tribunal on that point.

The next point is regarding the liability of the insurance company. Now the insurance company would contend that the vehicle involved in the accident is a goods auto rickshaw. The policy is issued to cover one driver and one employee. The claimant even going by his case is not an employee of the insured. Therefore, provisions of the policy does not cover the risk of the claimant. Now the next question is whether there is a statutory coverage as contemplated under Section 147 of the Motor Vehicles Act. As decided in Asharani’s case (2003 (1) KLT 165 SC) prior to the amendment of the Motor Vehicles Act under Act 54 of 1994 the person accompanying the goods or the owner of the goods were not covered by the terms and conditions of the policy. But by virtue of the incorporation of the amended provision the owner of the goods or the representative of the owner of the goods is statutorily covered. Now it is the case of the claimant that he has been accompanying the goods as the owner of the goods against which there is no contra evidence. Claimant along with the driver of Autorickshaw was travelling in the autorickshaw as the owner of the goods.

Now the next question that may arise for consideration is whether an autorickshaw driver can carry another person in the autorickshaw. Most probably, this argument is raised on the basis of the decision in 2008 (4) KLT 552 (SC) United India Insurance Company Ltd., v Suresh. In that case the Hon’ble Supreme Court held that the driver of the autorickshaw cannot share his seat with anybody else and therefore, no other person other than the driver can travel in the cabin. But so far as this case is concerned materials are made available before me to show that two persons are permitted to be carried in the vehicle. As per the registration certificate the seating capacity including the driver is shown as two in numbers. So one person other than the driver is entitled to travel in the cabin. When it is so, the question of sharing the driver’s seat does not arise. Even as per the provision of the insurance policy, coverage is therefore one driver plus one employee. I am referring to this only for the reason that the insurance company also knew the fact that the autorickshaw can carry two persons. I am conscious of the fact that the coverage of two employees will not take in the claimant. But by virtue of the statutory fiction under Section 147 of the Motor Vehicles Act the owner of the goods or the representative of the owner of the goods is covered by the policy without additional premium. Since the claimant had travelled in the autorickshaw which can take two persons and that as he had travelled as the owner accompanying the goods by virtue of the dictum laid down in Asharani’s case as well as the statutory fiction under Section 147 (1) of the Motor Vehicles Act, the said person is covered under the Act. Therefore, the insurance company cannot get exonerated from the liability and they are liable to pay the amount. Therefore, from these discussions, I find nothing to interfere with the decision rendered by the Tribunal. Therefore, the appeal fails and the same is dismissed.

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