The Oriental Insurance Co. Ltd. vs Salam, Suresh Kumar and Indhumath

Thomas P. Joseph, J.—Respondents appear through learned counsel. The third respondent in these appeals sustained injuries on 26.05.2005 while traveling in a car. They claimed compensation from the appellant and the respondents 1 and 2 alleging that the accident occurred due to the negligence of the second respondent.

The appellant contended that there was only an Act Only policy issued with respect to the car involved in the accident and that since the third respondent in these appeals are gratuitous passengers, there is no liability for the appellant.

The Tribunal found that the accident occurred due to the negligence of the second respondent, assessed compensation payable to the third respondent, fastened liability on the appellant and the respondents 1 and 2 and directed the appellant to deposit compensation. The common award is under challenge.

The learned counsel for the appellant asserts that the appellant has issued only an Act Only policy for the vehicle involved and that does not cover liability of gratuitous passengers.

The learned counsel for the respondents contends that though a contention in the above regard was taken in the written statements, that contention was not seriously pursued in the course of enquiry as disclosed by the observations contained in paragraph 10 of the award. The learned counsel for the respondents 1 and 2 would further contend that the policy would show that the appellant had collected premium for ''PA'', ''extra PA'' and also for ''any extra loading''. That, according to the learned counsel is sufficient to cover liability of gratuitous passengers.

In response, learned counsel for the appellant would contend that the expression ''PA'' refers to ''personal accident'' of the owner of the vehicle. It is also contended that the term ''extra loading'' does not relate to gratuitous passengers.

True that in paragraph 10 of the award the Tribunal has observed that though a contention regarding non liability of the appellant is raised in the written statements, that is not specifically and satisfactorily taken up and not seriously contended or agitated subsequently. It is seen that a copy of the policy was produced and marked as Ext. A14. I am inclined to think that the Tribunal ought to have decided the question since the policy was on record.

At the same time I am inclined to think that the question as to whether additional premium collected for ''PA'', ''extra PA'' and/or ''extra loading'' concerns gratuitous passengers is required to be decided by the Tribunal. The result is that so far as liability of the appellant to the third respondent in these appeals is concerned, the matter requires decision after giving both sides opportunity to adduce evidence. At the same time, I have to make it clear that I have not interfered with the findings regarding cause of accident, negligence of the second respondent or as to the amount of compensation the Tribunal has awarded to the third respondent in these appeals.

Resultantly these appeals are allowed by way of remand as under:

(i) Finding of the Motor Accident Claims Tribunal, Palakkad (for short, "the Tribunal") in O.P. (M.V.). Nos. 1128 and 1144 of 2005 as to the liability of the appellant and the direction to the appellant to deposit compensation awarded in the said cases is set aside.

(ii) O.P. (M.V.). Nos. 1128 and 1144 of 2005 are remitted to the Tribunal for fresh decision on the question of liability of the appellant after giving both sides opportunity to adduce evidence.

(iii) Parties are directed to appear before the Tribunal on 05.08.2013.

(iv) Parties will suffer their cost in these appeals.

All pending interlocutory applications will stand dismissed.