MACA.No. 2301 of 2012,MACA No.1435 of 2014

15th November, 2016.

Petitioner Counsel: Sri. P.V. CHANDRA MOHAN
Respondent Counsel: Smt.SARAH SALVY, Sri. A.N. SANTHOSH, Sri. MAJO K. JACOB, Smt. LIJIN A. GEORGE

JUDGMENT

K. P. JYOTHINDRANATH, J. :- Both these appeals are filed challenging the award in O.P. (MV)No.2793/2003 on the file of the Motor Accidents Claims Tribunal, Thrissur. M.A.C.A.No.1435/2014 is filed by the first respondent in the claim petition, whereas M.A.C.A.No.2301/2012 is filed by the claimants therein. The common grievance of the appellants is that the Tribunal has exonerated the insurance company from the liability of payment of compensation.

2. The facts relevant for consideration of these appeals are as follows:

On 27.02.2003 at about 6 a.m., an ambulance bearing RegNo.KL 6/A 1454 hit against a compound wall and overturned. In that accident, two passengers in the vehicle sustained injuries and one among them succumbed to the injuries sustained. The legal heirs of the deceased filed O.P.(MV)No.2793/2003 alleging that the accident occurred due to the negligence of the driver of the ambulance. The claimants therein arrayed the owner, driver and the insurance company as well as the insured as respondent 1 to 4 in the said claim petition. The Tribunal found that the accident occurred due to the negligence of the driver of the ambulance. But considering the contention of the insurance company that the policy is only an 'act only policy' and further after coming to a conclusion that the deceased was a gratuitous passenger, who is not covered by the 'act only policy', the insurance company was exonerated. The challenge is against the said finding. The claimants as well as the first respondent, who is the registered owner of the vehicle are the appellants herein.

3. When these appeals came up for admission, the learned counsel appearing for both the appellants submitted before us that the vehicle involved is an ambulance and there is no dispute regarding the said fact. It is also brought to our notice that the insurance company got marked the certificate of registration of the vehicle as Ext.B2 as well as the copy of the policy as Ext.B1 before the Tribunal. The submission of the learned counsel is that those facts are not in dispute. It is also submitted before us that the accident occurred due to the negligence of the driver of the ambulance is also not under dispute. No other vehicle is involved. It is a case where the accident occurred due to the vehicle overturning after hitting against a wall. As such, the principle of res ipsa loquitur will be applicable.

4. The only point to be considered is whether Ext.B1 policy will cover the risk of a passenger in the vehicle. The vehement submission made by the learned counsel is that even though it is an 'act only policy', it will also cover the passenger i.e. the deceased. It is also submitted before us that, it can be seen that, Ext.A6 is the copy of the inquest report marked on the side of the appellants which will show that the ambulance was proceeding to collect a dead body. When it was proceeding to collect a dead body, the accident occurred. As such, the insurance company is liable to indemnify the passengers in the ambulance as it is a transport vehicle.

5. The specific contention of the insurance company is that the deceased was a gratuitous passenger and he will not come under the category of third party. Under such circumstances, there will be no insurance coverage and no illegality committed by the Tribunal in exonerating the insurance company from the liability.

6. As per Ext.B2, it is an undisputed fact that the vehicle involved in the accident is an ambulance. The question is whether it is a 'transport vehicle' or not. The definition of 'transport vehicle' given in Section 2(47) of the Motor Vehicles Act, 1988 reads thus :

"transport vehicle means a public service vehicle, a good carriage, an educational institution bus or a private service vehicle."

7. Similarly, the main contention of the learned counsel for the insurance company is that as per the petition, it is categorically stated that the deceased was a passenger. Now, we will examine the definition of the term 'passenger'. As per Rule 2(p) of the Kerala Motor Vehicles Rules, 1989, a "passenger" is defined as under :

" 'passenger' for the purposes of these rules, means any person travelling in a Public Service Vehicle other than the driver or the conductor or an employee of the permit holder while on duty."

8. Public service vehicle is defined under Section 2(35) of the Motor Vehicles Act, which reads as follows :

"public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi cab, a motor cab, contract carriage and a stage carriage."

9. In the award itself, it is categorically stated that the number of passengers permitted in an ambulance is 7. Thus, in the case of ambulance, there is no need to take permit as is required for other vehicles. As per the central Government Gazette notification viz., GO 451(E) dated 19.06.1992, it can be seen that an ambulance is included or categorised as a transport vehicle. The said notification is issued in exercise of the powers conferred by sub section (4) of Section 41 of the Motor Vehicles Act, 1988. Thus, the category to be shown at the time of registration itself is that an ambulance is a transport vehicle. When an ambulance is categorised as a transport vehicle, surely the passengers therein will be treated only as a third party who will get statutory coverage under Section 147 of the Motor Vehicles Act.

10. Another question posed by the insurance company is that an ambulance can be treated as a private vehicle. The sole purpose of an ambulance is to transport dead bodies, injured or other disabled persons. By no stretch of imagination can it be said that a person or a business firm will be keeping an ambulance only for the purpose of transporting the inmates of his house or business firm, whenever they get injured or whenever there is a dead body to be transported. From the categorisation itself, it is evident and apparent that the intention of keeping an ambulance is for the use of public, who will require the same for the conveyance of dead bodies or injured persons. When the category to which the ambulance belongs is "transport vehicle", it cannot be said that it is a private vehicle intended for the purpose of private use.

11. Under such circumstances, when the purpose of an ambulance is for transportation of injured or dead bodies of the public, it can be only treated as a transport vehicle. If it is a transport vehicle, then it can be said that the passengers therein will be covered by 'an act only policy' i.e. the passengers or the persons travelling or transported in such a vehicle can be only treated as third parties. If they can be treated as third parties, then the statutory coverage will be available for such persons who are travelling or being transported in such a vehicle. Thus, the contention of the insurance company that it is only an act only policy itself will show that they are bound to indemnify the liability, that will be incurred to the owner/insured.

12. There is also force in the submission of the learned counsel appearing for the appellants in M.A.C.A.No.1435/2014 that as per the policy conditions, which is marked as Ext.B1, it is categorically stated under the heading liability to third parties that " subject to the limit of liability as laid down in the Motor Vehicles Act the company will indemnify the insured, in the event of accident caused by or arising out of the use of the motor vehicle anywhere in India against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of death or bodily injury to any person and/or damage to any property of third party.

13. When the claimants are coming under the category of third parties, then by virtue of Ext.B1, the insurance company will be liable. Further it can be seen that the ambulance cannot be considered as vehicle available by non-payment of fare to take injured or dead body. Even the persons who are hiring the same cannot come under the category of non-paying fare passengers. They will come under the category of hiring or paying passengers. Then the vehicle will be only a public service vehicle. When the vehicle is intended for a particular purpose and positively when the case of the appellants as evident from Ext.A6 is that they are going to collect a dead body, then without any doubt, it can be said that the insurance company is liable to pay compensation. Further it can be seen that the main contention of the insurance company is that as it is an act only policy, passengers in the vehicles are not covered. They got no case that there was violation of registration conditions. Under such circumstances, even if it is not specifically pleaded that they were proceeding to take dead body, the contention of the insurance company cannot be sustained.

Thus, both the appeals are allowed and the finding of the Tribunal to the effect that the insurance company is not liable to pay the compensation is hereby vacated. It is ordered that the insurer of the vehicle involved in the accident i.e. the ambulance, shall pay the compensation as ordered by the Tribunal. The Insurance Company shall deposit the compensation as ordered by the Tribunal within two months from the date of receipt of a copy of this judgment. It is also ordered that the appellant in M.A.C.A. No.1435/2014 is permitted to withdraw the statutory deposit made before the Tribunal. There will be no order as to costs.

Appeal allowed.