K MOHANAN Vs. RETHNAMMA

JUDGEMENT

(1.) The short question that arises for consideration in this appeal is whether the mahout travelling along with elephant on the platform as per statutory direction is a gratuitous passenger? If so, whether the insurer can avoid its liability on that ground? Appellant herein is the owner of the lorry KL-02/B-3229 which was insured with Oriental Insurance Company Ltd., the 5th respondent herein, and the vehicle met with an accident on 05.10.2007 and one Rajappan who is the passenger in the lorry died. The legal heirs and dependants of late Rajappan preferred O.P.(M.V.) No.218 of 2008 before the Motor Accidents Claims Tribunal, Attingal and the learned Tribunal awarded a compensation of Rs.8, 39, 000/- (Rupees Eight Lakh Thirty Nine Thousand only) with interest and cost, exonerated the insurer from the liability and directed the appellant to pay compensation. Being aggrieved by that, the owner of the vehicle preferred this appeal.

(2.) The claimants case in the Tribunal was that on 05.10.2007 at 9 am, the deceased Mahout was travelling along with the elephant on the platform of the lorry KL-02/B-3229 from Punalur to Anchal, when they reached at Mavila Junction, the driver swerved the vehicle, thereby the elephant and the Mahout fell down from the lorry and sustained serious injuries. Immediately, he was removed to Government Hospital, Punalur where he succumbed to the injuries. The owner (R1) of the lorry disputed the accident and the insurer (R2) admitted the insurance of the vehicle in the lower court. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A9. Respondent's documents was marked as Ext.B1.

(3.) Learned counsel appearing for the appellant contended that the deceased was travelling on the platform of the lorry as per direction in Kerala Captive Elephant (Management and Maintenance) Rules, 2003 (for short, Rules 2003) which was issued by the Government of Kerala. The norms and standards for transportation provide that Mahout shall sit near the captive elephant on the platform and separate seating must be provided to him. There is no violation of the policy conditions as provided under Sec.147 of the Motor Vehicles Act (for short, M.V. Act) and the mahout cannot be treated as a gratuitous passenger.