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M.A.C.A. Nos. 1242 & 1905 of 2008. Case: Mathew Vs Shaji Mathew. High Court of Kerala (India)

Judgment Cited in 4 Precedent Map Related
Vincent
Case NumberM.A.C.A. Nos. 1242 & 1905 of 2008
CounselP. P. Stella, Bijimon C. Cherian, P. A. Razia
JudgesK. M. Joseph & M. L. Joseph Francis, JJ.
IssueMotor Vehicles Act, 1988 - Sections 147, 147(1), 166; Workmen's Compensation Act, 1923; Motor Vehicles Act, 1939 - Section 95
Citation2009 (3) KLT 813
Judgement DateJuly 14, 2009
CourtHigh Court of Kerala (India)

Judgment:

K. M. Joseph, J.

  1. These two appeals are connected and they are disposed of by this common judgment. M. A.C. A. 1242 of 2008 is filed by the Ist respondent in O.P.(MV) No. 1316/2004 which is a petition filed under S. 166 of the Motor Vehicles Act, 1988 by the appellant in M.A.C.A No. 1905/2008. The vehicle driven by the appellant in MACA No. 1242/2008 was involved in an accident resulting in injuries being caused to his wife namely, the appellant in MACA No.1905/2008. The Tribunal has awarded a total compensation of Rs. 86, 550/- with interest at 8.5 percent from the date of application till satisfaction. We shall refer to the appellant in MACA No. 1242/2008 as the owner of the vehicle and the appellant in MACA No. 1905/2008 as the claimant.

  2. The Tribunal has exonerated the 2nd respondent insurance company from liability. The owner has filed the appeal challenging the exoneration of the insurance company. The claimant has preferred the appeal seeking enhancement of the compensation awarded.

  3. We heard learned counsel appearing for the owner, the claimant and the insurance company. We will take up the appeal filed by the owner. The question posed for our consideration and decision is whether the Tribunal was justified in exonerating the insurance company from liability to reimburse the amount payable by the owner. This is a case of a private car package. We will straight away extract the relevant terms of the policy. The relevant clauses under S. II read as follows:

    "1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the vehicle against all sums which the insured shall become legally liable to pay in respect of:-

    (i) death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.

    (ii) damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured.

  4. The Company will pay all costs and expenses incurred with its written consent.

  5. In terms of and subject to the limitations of the indemnity granted by this section to the insured, the Company will indemnify any driver who is driving the vehicle on the insured's order or with insured's permission provided that such driver shall as though he/she was the insured observe, fulfill and be subject to the terms exceptions and conditions of this Policy in so far as they apply.

    In the Schedule the limits of the liability is stated as follows:

    Limits of Liability:

    Under S.II (i) in respect of any one accident:As per Motor Vehicles Act, 1988.

    Under S.II (ii) in respect of any one claim or series of claims arising out of one event Rs.7, 50, 000/-.

  6. The Schedule of premium reads as follows:

    SCHEDULE OF PREMIUM (IN RS.)

    A: OD- BASIC 4,558.50 B.T.P.= BASIC 500.00

    NCB 24% 1,139.63 COMPULSORY PA TO OWNER-DRIVER AMOUNT 2, 00, 000 100.00

    WC TO EMPLOYEE 25.00

    GROSS (B) 627

    GROSS OD & TP 4,046

    LOADING ON TP PREMIUM 2.00

    GROSS (A) 3,419 NET PREMIUM 4,046

    SERVICE TAX 8% 324

    MINIMUM PREMIUM RS.100 NET AMOUNT PAYABLE (ROUNDED) 4, 370

  7. There is also a clause which deals with personal accident cover for the owner-driver with which we may not be concerned. We notice that a Division Bench of this Court had occasion to consider a clause which though not identical bears some similarity to the clause which falls for our consideration reported in New India Assurance Company Ltd. v. Hydrose (2008 (3) KLT 778). The Court was considering a "B" policy. The Court inter alia held as follows:

    " Here it is not an Act only policy. It is a "B" policy and S.II (1) (i) of the conditions attached to the policy issued in this case shows that as per the terms and conditions of the policy, gratuitous occupants of the vehicle are covered. Insurer has undertaken liability in respect of death or bodily injuries to any person including a person conveyed in or on the motor cycle provided such person is not carried for hire or reward. Here no limitation of liability is mentioned in the Schedule. In fact, specific coverage is provided for the risk of gratuitous passenger as per the conditions of policy regarding the coverage of risk due to the death or bodily injury to any person, provided, the person is not carried for hire or reward. In these circumstances, the Insurance Company has by contract agreed to indemnify the insured of the risk of gratuitous passenger in the motor cycle."

  8. Therefore, if we accept the reasoning of the Division Bench of this Court, the owner is justified in contending that insofar as the claimant was his own wife and a gratuitous passenger she was clearly covered by the terms of the policy. But, Smt. P. A. Reziya, learned counsel appearing for the insurance company would submit that there is a fundamental distinction in the provision which was considered by the Division Bench and the provision which is applicable in the facts of this case. That is to say, she would contend that the clause in this case does not end with the words "death of or bodily injury to any person including occupants carried in the vehicle not for hire or reward". She would contend that it is followed by the words " but except so far as it is necessary to meet the requirements of Motor Vehicles Act". She would therefore contend that the addition of this clause in the policy which is issued after 2001 makes all the difference in regard to the question of liability to be shouldered by the insurance company. In other words, she submits that there is no liability to the insurance company to reimburse the owner the amount which he has been found liable to pay by the Tribunal. Learned counsel for the insurance company would also contend that no premium is paid to cover the liability.

  9. Learned counsel for the owner would point out that there are no words limiting the liability. An occupant in the vehicle provided the occupant is not for hire or reward is covered by the policy. She would further contend that as far as employees is concerned the owner has paid Rs.25 extra to cover an employee and in this case as the claimant is none other than the wife of the owner who was carried as a gratuitous passenger...

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