2025:KER:26909 MACA NO.1821 OF 2012 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR WEDNESDAY, THE 19TH DAY OF MARCH 2025 / 28TH PHALGUNA, 1946 MACA NO. 1821 OF 2012 AGAINST THE ORDER/JUDGMENT DATED 26.05.2012 IN OPMV NO.180 OF 2005 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA/ I ADDL. M.A.C.T. /M.A.C.T., PATHANAMTHITTA APPELLANT/RESPONDENT NO.1: JOE C.VATTACHERIL JOECCES BAKERS VATTACHERIL T.K. ROAD MANJADI THIRUVALLA PATHANAMTHITTA DISTRICT BY ADVS. SUSANTH SHAJI V.V.SHAJI(S-1400) RESPONDENTS/ PETITIONER AND RESPONDENT NO.2 : 1 RAJESH NARAYANAN KIZHAKKETHIL VEEDU KAVUMBHAGAM P.O THIRUVALLA PATHANAMTHITTA DISTRICT 2 NATIONAL INSURANCE CO LTD THIRUVALLA 3 AKHILA RAJESH KIZHAKKETHIL HOUSE, KADAYIRIPPU P.O, KOLENCHERRY, ERNAKULAM DISTRICT. 2025:KER:26909 MACA NO.1821 OF 2012 2 4 LEKHA RAJESH KIZHAKKETHIL HOUSE, KADAYIRIPPU P.O, KOLENCHERRY, ERNAKULAM DISTRICT. *(IMPLEADED AS PER ORDER DATED 5/2/2025 IN IA 1/2022 IN MACA 1821/2012) BY ADV SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:26909 MACA NO.1821 OF 2012 3 J U D G M E N T The 1st respondent in O.P.(M.V.) No.180/2005 on the file of the Motor Accident Claims Tribunal, Pathanamthitta, is the appellant herein. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the Tribunal). 2. The petitioner filed the above O.P. under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained in a motor vehicle accident that occurred on 27.12.2004. According to the petitioner, on 27.12.2004 at about 2.30 p.m., while he was travelling in a petty autorickshaw bearing reg.no.KL 3C 3501, the autorickshaw capsized and as a result of the accident, the petitioner sustained serious injuries. 3. The 1st respondent is the owner and the 2nd respondent is the insurer of the offending vehicle. The driver of the autorickshaw was not made a party. The Tribunal found that the petitioner was a gratuitous passenger in the goods autorickshaw at the time of the accident. The Tribunal awarded a total compensation of Rs.1,07,670/- and directed the 2nd respondent insurer to pay the same. Further the 2nd respondent was permitted to recover the compensation from the 1st respondent. 2025:KER:26909 MACA NO.1821 OF 2012 4 4. The evidence in the case consists of the documentary evidence Exts.A1 to A10 and B1 to B3. 5. Aggrieved by the above award permitting the 2nd respondent to recover the compensation from the 1st respondent, he came up with this appeal. 6. Now the point that arises for consideration is the following: whether the order of the Tribunal permitting the 2nd respondent to recover the compensation from the 1st respondent is liable to be interfered with? 7. Heard Sri. Sushanth Shaji, the learned Counsel appearing for the appellant/1st respondent, and Sri.A.R. George, the learned Standing Counsel for the 2nd respondent. 8. One of the contentions raised by the learned counsel for the appellant is that the driver of the offending autorickshaw was not made a party and without the driver in the party array negligence cannot be proved against him. Another argument advanced by him is that, in Ext.B1 insurance policy a sum of Rs.25000/- was paid to WC to employee one and according to him it is the premium paid for a person other than the driver. He would also argue that the petitioner was travelling in the good auto rickshaw as the agent 2025:KER:26909 MACA NO.1821 OF 2012 5 of the owner of the goods. On the other hand, the learned counsel for the insurer would argue that in the petty auto rickshaw there was only one seat exclusively for the driver and in the absence of any additional seat, no other person can travel in the autorickshaw and if anybody else travels in the autorickshaw, he is to be treated as a gratuitous passenger. 9. The learned counsel for the appellant relied upon the decision of the Division Bench of this Court in New India Assurance Co.Ltd vs. Balakrishnan and Others 2011 (4) KHC 203 and argued that, unless it is proved that the breach of condition of policy has resulted in causing the accident, the said violation cannot be taken as a ground to exonerate the insurer. He has also relied upon the decision of a Single Judge of this Court in Oriental Insurance Company vs. Jeeja Mohan 2024(7) KHC 451, in which more passengers than permitted seating capacity travelled in a goods vehicle and in the accident one of the passengers sustained injuries. In the above context, the learned Single Judge held that for the mere reason that four passengers are permitted to travel in the vehicle, it cannot be held that overloading has contributed to the accident and on such a ground the insurer cannot be exonerated. 10. On the other hand the learned counsel for the insurer has 2025:KER:26909 MACA NO.1821 OF 2012 6 relied upon the decision of the Hon’ble Supreme Court in United India Limited Company vs. Suresh K.K. and another 2008 KHC 4602, in which in a similar instance the Apex Court held that in a goods autorickshaw with seating capacity only one, the driver could not have allowed anybody else to share his seat. In paragraph 13, the Apex Court held as follows; 13. If the claimant had not been travelling in the vehicle as owner of the goods, he 13. shall not be covered by the policy of the insurance. In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved. 11. In the above decision, the Apex Court further held that the term ‘any person’ envisaged under Section 147(b)(i) of the Motor Vehicles Act does not does not include any gratuitous passenger. 12. In the instance case, admittedly the seating capacity of the auto rickshaw is only one and it is exclusively meant for the driver of the auto rickshaw. It shows that in the said auto rickshaw nobody other than the driver could travel lawfully. In Ext.B1 policy though Rs.25/- is seen paid, it is towards WC to employee 1, which means that, the said premium was paid only for the employee to cover the liability under the Workmen 2025:KER:26909 MACA NO.1821 OF 2012 7 Compensation Act and he can only be the driver of the petty auto rickshaw. In other words, Ext.B1 does not cover any person other than the driver of the auto rickshaw. If anybody else travels in the said petty auto rickshaw wherein there is only one seat reserved exclusively for the driver, he can only be a gratuitous passenger. 13. In the above circumstances, it is evident that Ext.B1 policy does not cover a person other than the driver and as such the insurer is not at all liable to indemnify the compensation payable by the owner of the vehicle. Therefore, the Tribunal was perfectly justified in permitting the 2nd respondent to recover the compensation from the 1st respondent. Therefore, I do not find any merits in this appeal and as such it is liable to be dismissed. In the result, this appeal is dismissed. Sd/- C. PRATHEEP KUMAR, JUDGE Pvv