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2003 DIGILAW 92 (KER)

National Insurance Co. Ltd. v. Saidali

2003-02-04

K.A.ABDUL GAFOOR, K.THANKAPPAN

body2003
Judgment :- Abdul Gafoor, J. The insurer has come up with this appeal against the award passed by the Motor Accidents Claims Tribunal, Palakkad in O.P.(MV) No.667 of 1995. 2. It is contended that there was an application under Section 170 of the Motor Vehicles Act, 1988 which was allowed permitting the appellant to take up all the grounds before the Tribunal below. It is submitted by the learned counsel appearing for the appellant that the appellant ought not to have been mulcted with the liability even in terms of the restriction contained in the policy to the extent of 50% in favour of the claimants as the deceased was a gratuitous passenger in a tractor tied with a trailer carrying goods. It is contended that the owner of the vehicle also had contended that the deceased was a gratuitous passenger. But, it has come out in evidence that at the material time, he was a head load worker engaged for unloading the articles loaded in the vehicle. When it was so found, necessarily he will come within the representative of the owner of the goods and it has to be taken that the owner of the goods had made arrangements for unloading the materials. The accident occurred on 28.3.1995, after the amendment to Section 147(1)(a)(i) of the Motor Vehicles Act, 1988 bringing the owner of the goods or the representative of the owner of the goods carried in the goods vehicle within the coverage of an Act only policy. 3. It is also contended before us that the vehicle in question was a goods vehicle. In such a situation, the representative of the owner of the goods carried in the vehicle comes within the coverage of an Act policy. Hence, the decision reported in New India Assurance Co.Ltd. v. Asha Rani, 2003 (1) K.L.T. 165 (SC) cannot in any way be made applicable in the present case. The question examined in that case was whether compensation was payable to the injured or dependents of the deceased carried in a goods vehicle before 14.11.1994, the date of amendment to Section 147(1)(a)(i) of the Motor Vehicles Act, 1988. As the accident in this case had occurred after the said date, necessarily that decision cannot have any relevance to hold that even the representative of the owner of the goods is not covered by an Act only policy. 4. As the accident in this case had occurred after the said date, necessarily that decision cannot have any relevance to hold that even the representative of the owner of the goods is not covered by an Act only policy. 4. The Tribunal has directed the insurer to pay only the restricted liability in terms of the conditions contained in the policy. The other contention that the driver did not possess the badge need not be looked into as it can be termed as violation of the conditions of the policy and for such violation, the insurer cannot avoid the liability. If the insurer has a contention that the Tribunal ought to have allowed the insurer to realize the amount from the insured, the insurer ought to have brought it to the notice of the Tribunal for appropriate orders. The appeal, therefore, fails and it is dismissed.