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2010 DIGILAW 723 (KER)

United India Insurance Co. Ltd. v. Velayudhan

2010-09-20

M.N.KRISHNAN

body2010
JUDGMENT This appeal is preferred against the award passed by the Motor Accidents Claims Tribunal, Perumbavoor in O.P. (MV) No.1298 of 2003. It is the case of the claimant that while after unloading the rice belonging to Mahima Modern Rice Mill, of which he is an employee and while the lorry was returning back it met with an accident resulting in injuries to him. 2. On the other hand, the insurance company would contend that he was not the owner of the goods or the representative of the owner of the goods and therefore contended that the status of the claimant would be that of a gratuitous passenger not covered by the policy and so the insurance company is not bound to indemnify. 3. The learned Tribunal, on exhaustive consideration of the materials held that the claimant was returning after unloading the goods and therefore the has to be considered as a representative of the owner of the goods and extended the benefit under S.147(1) of the Motor Vehicles Act and directed the insurance company to pay the amount. 4. Let me first consider about the factual matrix. It is the definite case of the claimant that he was an employee of Mahima Modern Rice Mill. It is the case that rice was transported in the lorry from Kaladi to Cherthala and after unloading the rice while the vehicle was returning to Kaladi the accident occurred and therefore he still continues to be the authorized representative of the owner of the goods and therefore entitled to claim benefit of the insurance policy. The insurance company would contend that he has nothing to do with the goods and therefore he cannot be termed as the representative of the owner of the goods and further as there was no goods in the lorry at the time of the accident, he cannot be considered as a person representing the owner of the goods. Under S.147 of the Motor Vehicles Act as amended by Act 54 of 1994, a person accompanying the goods or the authorized representative of the owner of the goods are covered under the statutory policy. So, it has to be found whether he is an authorized representative of the goods. A Division Bench of this Court in the decision reported in United India Insurance Co. So, it has to be found whether he is an authorized representative of the goods. A Division Bench of this Court in the decision reported in United India Insurance Co. Ltd. v. Suresh ( 2006 (4) KLT 333 ) considered this position and held that the amended provision makes it explicitly clear that the word 'carried' qualifies the owner of goods or his representative and not the goods carried. The owner or the authorized representative need not invariably be shown to accompany the goods, at the time of accident causing injury to or resulting in the death of the passenger who is either the owner of the goods or the authorized representative of the owner of the goods. It was also a case where the accident took place where the persons were returning after unloading the goods. It was to be stated that the matter was taken up before the Supreme Court and the Supreme Court had reversed the decision of this Court in the decision reported in United India Insurance Co. Ltd. v. Suresh (2008 (4) KLT 552 (SC). It has to be noted that the Supreme Court reversed the decision of this Court not on the finding on this point but altogether a different point for the reason that it was an auto rickshaw and it was not expected to carry person in a driver's seat. The Supreme Court held that the vehicle in which the goods were carried was not designed to carry another person and therefore carrying another person permitting him to share the seat of the driver is not correct and therefore that person will not have the status of the owner of the goods or the representative or the owner of the goods and thereby declined relief to those persons. The Supreme Court never considered this point but observed that "the High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision". In another decision rendered by a Division Bench of this Court reported in New India Assurance Co. The Supreme Court never considered this point but observed that "the High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision". In another decision rendered by a Division Bench of this Court reported in New India Assurance Co. Ltd. v. Alekutty Antony ( 2009 (4) KLT 130 ) a reference has been made to be Division Bench ruling and held that even when returning in a goods vehicle a person travels in the cabin of the vehicle which permits carrying of person in the cabin, he would be covered and the persons who travel in the platform are not authorized persons to be carried in the platform and declined to grant compensation to them. Or, in other words, the principle that a person continues to be the owner of the goods or representative of the owner of the goods even while returning after unloading of goods. When this is the factual position, learned counsel for the insurance company with all vehemence would argue that the decision of the Supreme Court in National Insurance Co. Ltd. v. Kaushalaya Devi & Ors. ( 2008 ACJ 2144 ) would apply on all force to the facts of this case and therefore the insurance company should be exonerated from the liability. It was a case where a person was travelling in a goods vehicle for the purpose of collecting boxes. At that time, the vehicle was loaded with vegetables. The person who had travelled in the vehicle was not the owner of the vegetables or the representative of the owner of the vegetables. He was only a prospective hirer, who had gone in the vehicle for the purpose of collecting cardboard boxes. In such a situation, the Supreme Court held that he cannot be termed as the owner of the goods or the representative of the owner of the goods. Learned counsel for the appellant had cited before me the decision rendered by the Karnataka High Court in National Insurance Co. v. Aishabi (2008 (3) KLT SN 8 (C.No.11) (Karnt.) wherein the learned Judge of the said Court held that since if there are no goods in the vehicle, the insurer is not liable. But the Division Benches of the Kerala High Court had held otherwise and therefore I am not persuaded by the said decision to act. v. Aishabi (2008 (3) KLT SN 8 (C.No.11) (Karnt.) wherein the learned Judge of the said Court held that since if there are no goods in the vehicle, the insurer is not liable. But the Division Benches of the Kerala High Court had held otherwise and therefore I am not persuaded by the said decision to act. The Division Bench decision is a binding precedent for this Court. 5. So far as the present case is concerned, the owner of Mahima Modern Rice Mill was examined. He had deposed before court that the claimant was authorized by him to travel in the mini lorry for the purpose of loading and unloading the rice at Cherthala. So the object and purpose for which the claimant was travelling was for loading and unloading rice as the authorised representative of the owner of the rice. Therefore it has to be held that he was accompanying the lorry only in a representative capacity. It is true that nothing happened when the goods were taken. But the unfortunate accident took place while the lorry was returning after unloading the rice there. It has to be remembered that he is not a mere loading and unloading worker. He is an employee of the rice mill owner, who had transported rice from Kaladi to Cherthala and was returning back as an employee as the representative of the owner of the goods after discharging his functions assigned to him. Therefore he still continues to be the authorised representative of the owner of the goods. When it is so, S.147 squarely comes to his rescue and he is liable to be covered under the terms and conditions of the policy. So the award requires no interference. In the result, the appeal fails and the same is dismissed but without costs.