HONOURABLE SRI JUSTICE NINALA JAYASURYA
M.A.C.M.A.No. 3336 of 2005
JUDGMENT:-
The present appeal is preferred by the appellant-insurance
company aggrieved by the award and decree, dated 16.02.2004,
passed in M.V.O.P.No.333 of 1998 passed by the Chairman, Motor
Accidents Claims Tribunal-cum-Additional District Judge, Anantapur,
(hereinafter referred to as 'the Tribunal'), wherein an amount of
Rs.53,000/- was awarded as compensation with interest @ 9% p.a.,
against the insurance-company and the owner of the vehicle, jointly
and severally.
2. Heard Mr. Gudi Srinivasu, learned counsel for the appellant-
insurance company and Mr. Maheswara Rao Kuncheam, learned
counsel for the claimants/respondent Nos.1 and 2.
3. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Tribunal in the original petition.
4. In the O.P., it was stated that the deceased V. Anitha, aged about 3 years, died in an accident that occurred on 02.10.1997 at Maddileru River Bridge on Anantapur-Kadiri road, while travelling in a tractor and trailer bearing No. AP-02/6419 and 6420.
5. The O.P., was contested by the appellant-insurance company and the owner of the above said tractor and trailer remained ex parte.
6. On behalf of the claimants, one Smt. Krishnamma, claimant No.1 was examined as P.W.1 and got marked Exs.A1 to A4. No evidence was adduced by the insurance company. 2
NJS, J MACMA_3336_2005
7. The Tribunal after considering the evidence on record, partly allowed the claim by awarding a compensation of Rs.53,000/- as against the amount of Rs.60,000/-.
8. The learned counsel for the appellant-insurance company submits that the deceased V. Anitha was travelling as an unauthorized passenger in a goods vehicle i.e., tractor and trailer bearing No.AP-02/6419 and 6420. He submits that except the driver of the tractor and trailer, no other person is supposed to sit or travel in the tractor and trailer. However, as the deceased V. Anitha was travelling in the said vehicle, and died in the accident, the insurance company is not liable to pay the compensation. He submits that the Tribunal erred in fastening the liability on the insurance company despite the above undisputed position, and further that in any event, the Tribunal ought to have applied the principle of pay and recover. He submits that the award of the Tribunal is therefore liable to be set aside as there is a violation of terms and conditions of the policy.
9. Mr. Maheswara Rao Kuncheam, learned counsel for the claimants, on the other hand, supported the award of the Tribunal and submits that even as per the recent judgments of the Hon'ble Supreme Court in Shivaraj v. Rajendra and Another1 and Manuara Khatoon v. Rajesh Kumar Singh2, no interference is warranted in the award of the Tribunal.
10. This Court has considered the submissions of both the learned counsel and perused the material on record. Though, it is the contention of the learned counsel for the appellant-insurance 1 (2018) 10 SCC 432 2 (2017) 2 SCC 796 3 NJS, J MACMA_3336_2005 company that the insurance company is not liable to pay the compensation on the ground that the deceased V. Anitha was travelling as an unauthorized passenger in a goods vehicle, no evidence was adduced by the insurance company to that effect. Further, as per the recent judgments of the Hon'ble Supreme Court more particularly in Shivaraj's case referred to supra, the Hon'ble Supreme Court, even in respect of an accident involving death of an unauthorized passenger in a goods vehicle, ordered payment of compensation by the insurance company. However, liberty is granted to recover the same from the owner of the vehicle. In the said case, the claimant met with an accident while he was travelling in a tractor. The O.P., filed by the claimant was partly allowed. Aggrieved by the same, the claimant filed an appeal and the insurance company also filed an appeal insofar as fastening of liability on it is concerned. While dismissing the claimant's appeal, the High Court held that the insurance company is not liable for the loss or injuries sustained by the claimant. In the appeal, the Hon'ble Supreme Court in the attending facts and circumstances of the case held that the High Court ought to have directed the insurance company to pay the compensation amount to the claimant with liberty to recover the same from the owner of the tractor.
11. In view of the expression of the Hon'ble Supreme Court in the above cited judgment, the contention of the learned counsel for the appellant-insurance company that it is liable to be exonerated from payment of the compensation, cannot be accepted. However, keeping in view of the above judgment, this Court deems it appropriate to modify the award of the Tribunal to the effect that the insurance company shall pay the awarded compensation, at the first instance, within a period of 8 weeks from the date of receipt of a copy 4 NJS, J MACMA_3336_2005 of this order and recover the same from the owner of the vehicle, without filing a separate suit. On such deposit, the respondents/claimants are entitled to withdraw their respective shares as per the apportionment made by the Tribunal.
12. Accordingly, the award passed by the Tribunal is modified as indicated above and the appeal is disposed of. No costs.
Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
__________________ NINALA JAYASURYA, J 20.10.2021.
BLV 5 NJS, J MACMA_3336_2005 HON'BLE SRI JUSTICE NINALA JAYASURYA M.A.C.M.A.No.3336 of 2005 Dated 20.10.2021 BLV