NATIONAL INSURANCE CO LTD Vs. MOHAMMED ISMAIL

JUDGEMENT

(1.) THESE appeals are preferred against the awards of the Motor Accidents Claims Tribunal, Neyyattinkara in O.P.(MV)Nos.555/03 and 556/03. The claimants were travelling in a Bajaj pick up van and it met with an accident resulting in injuries to them. The Tribunal awarded Rs.26,640/- in O.P.(MV)No.555/03 and Rs.27,740/- in O.P.(MV)Nos.556/03. The insurance company raised a contention that persons were travelling in the pick up van(a goods auto rickshaw) which they are not expected or entitled to travel and therefore the insurance company cannot be saddled with the liability. The learned Tribunal also referred to the decision of the Hon'ble Supreme Court reported in United India Insurance Company v. Suresh (2008 (4) KLT 552). It was a case that had gone up from this Court and in that case when a vehicle is returning after unloading of goods with persons therein who are the representative of the owner of the goods whether they will have the status of persons accompanying the owner of the goods was the question. This Court held that they will have the status. The Hon'ble Supreme Court did not state anything on that but the Hon'ble Apex Court held that a goods auto rickshaw is a vehicle which is designed to carry goods and goods alone and there is statutory prohibition for the driver to share his seat with somebody else. So it was held that carrying of passengers in the driver's seat in an auto rickshaw is against law. Learned counsel for the insurance company had produced before me the copy of the policy which makes it very clear "Use only for carriage of goods within the meaning of the Motor Vehicles Act". When it is so it has to be stated that the driver was not competent to carry any persons in the cabin of an auto rickshaw. So such persons cannot get protection u/s 147 (1) of the M.V.Act. The contention that they were travelling as the owner or representative of the owner of the goods and is statutorily covered u/s 147 cannot apply to a case where nobody is expected to be carried in a goods auto rickshaw. Therefore S.147(1) does not cover such persons. When it is so the insurance company cannot be held liable. When the insurance company cannot be held liable there is no question of direction to pay and recover. In some cases the Hon'ble Supreme Court exercising power under Article 142 of the Constitution of India ordered payment and then to recover. Even that has become a subject matter reference to a larger Bench. This Court do not have such power when the company is not liable. Therefore when the policy does not cover the risk of persons involved in the accident then there is no liability for the insurance company. I make it clear that they cannot be saddled with the liability to pay and then recover. Therefore the finding of the Tribunal on that regard is absolutely erroneous and therefore it is set aside. In the result MACAs are allowed by exonerating the insurance company from paying the amount awarded and it is made further clear that the claimants can recover the amount from respondents 1 and 2 in the claim petition jointly and severally. If any amount is deposited and it is lying in Court deposit it shall be reimbursed to the insurance company on appropriate applications.