CHERIYA MOHAMMED Vs. KAMSAKUTTY

JUDGEMENT

(1.) THIS appeal arises out of the judgment of the Motor Accidents Claims Tribunal, Manjeri in O.P. (M.V.) No. 306 of 1986. The appellants herein are the driver and owner of the lorry involved in the accident. First respondent is the injured who filed the O.P. claiming compensation under Section 110 -A of the Motor Vehicles Act. The petitioner in the O.P. has filed a cross -objection claiming enhancement of the compensation as awarded to him by the Motor Accidents Claims Tribunal.

(2.) THE injured was carrying on the business of buying and selling ash. The accident had occurred on 22.1.1977 when the injured was travelling in a lorry belonging to the 2nd appellant carrying a load of ash from Palakkad to Perinthalmanna. Due to rash and negligent driving of the 1st appellant, the lorry capsized at a place called Amminikkad on Perinthalmanna -Manjeri Road and the claimant sustained very serious injuries. He had to undergo prolonged treatment. Exh. A -3 certificate would show that his permanent partial disability has been assessed at 55 per cent. The medical evidence is that he will always be confined to bed and he will not be in a position to sit even on a wheelchair for a long time. The injured who was aged 25 when the accident took place claimed a total amount of Rs. 1,25,000/ - as compensation under different heads. The Tribunal found that the accident occurred due to the rash and negligent driving of the 1st appellant and awarded a total amount of Rs. 45,000/ - as compensation to the injured with 6 per cent interest thereon from the date of the petition.

(3.) EVEN though several grounds have been taken by the appellants, mainly arguments were addressed on their contention that the Tribunal erred in exonerating the insurance company. According to the appellants, the Tribunal should have found that the injured who is the owner of the goods loaded in the lorry and was accompanying the goods should have been treated as a passenger carried in pursuance of a contract of employment as provided under Section 95(1)(b) of the Motor Vehicles Act. In order to substantiate the above contention, the appellants relied on a Division Bench decision of this court in New India Assurance Co. Ltd. v. K.T. Jose 1990 ACJ 184 (Kerala). In the above case the claimant hired a public carrier goods vehicle for transporting paddy belonging to him in the course of his business and while he was travelling in the lorry which carried his goods, the lorry met with an accident and he sustained injuries. The insurance company contended that the claimant being only a passenger of public carrier goods vehicle is not required to be covered under Section 95 of the Motor Vehicles Act. After considering elaborately the relevant provisions in the Act and conflicting decisions on the point of different High Courts this court held as follows: (17) We have already indicated that law countenances passengers travelling in goods vehicle. The owner of the goods carried in a goods vehicle or his employee or his agent can be permitted to travel in the goods vehicle. While doing so they cannot be said to be travelling gratuitously. The owner of the goods pays hire for the goods vehicle to carry his goods. Where it becomes necessary for him to travel in the goods vehicle for the purpose of loading, unloading or taking care of the goods, the contract between him and the owner of the vehicle must necessarily imply permission for him or his agent to travel in the vehicle. This implied condition would also have been taken into consideration in fixing the hire. Hence it is clear that owner of goods travelling in a goods vehicle is a passenger for hire and, therefore, his case is covered by the exception to the second proviso. In any view of the case, he must be regarded as a passenger travelling in the vehicle for reward. It has been argued before us that owner of the goods must also be taken to be a passenger travelling in the vehicle by reason of or in pursuance of contract of employment. No doubt the expression 'employment' would ordinarily mean engaging a person in service. Concise Oxford Dictionary explains the word 'employ' as 'use thing or one's power, time' and the word 'employment' as 'one's regular trade or profession'. One may engage a lorry for conveying goods. It can also be said that one employs a lorry for conveying goods. It is unnecessary to pronounce on this aspect. In either view, the insured is compulsorily liable to take out insurance policy against any liability in respect of the death of or bodily injury to the owner of the goods travelling in the lorry. Hence under an 'Act policy' the insurer is liable to indemnify in regard to such a liability.