HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.183 of 2012
JUDGMENT:
This appeal is filed under Section 173 of the Motor Vehicles Act aggrieved by the order and decree, dated 04.08.2010, passed in O.P.No.2081 of 2007 on the file of the VII-Additional Metropolitan Sessions Judge-cum-Motor Accident Claims Tribunal, Hyderabad.
The facts, in issue, are as under:
The appellants filed a petition under Section 163-A of the Motor Vehicles Act claiming compensation of Rs.5,00,000/- for the death of one Y @ V.Narender (hereinafter referred to as "the deceased"), in a motor vehicle accident that occurred on 22.06.2007. It is stated that on 22.06.2007 at about 1845 hours, the deceased along with his relatives was traveling in a Tata Mobile Vehicle bearing No. AP 28 X 4240 from Yenkepally Village to Nagasanipalli Village, for attending a dinner and when they reached at the outskirts of Yenkepally Village, Pudur Mandal, Ranga Reddy District, the driver of the vehicle drove it with high speed in a rash and negligent manner and dashed to a tree, as a result of which, the deceased sustained grievous injuries and he was shifted to Government Hospital, Vikarabad, where he succumbed to injuries. On a complaint, a case in Crime No.95 of 2007 of Chengomul Police Station, was registered against the driver of the Tata Mobile Vehicle. Since the 1st respondent being the owner of the vehicle and the 2nd 2 respondent being insurer of the vehicle, are jointly and severally liable to pay compensation.
Respondent No.1 remained ex parte.
Respondent No.2 filed counter contending that the deceased was traveled as a passenger in a goods carriage vehicle, which was insured, and no premium was paid to cover the risk of the passengers in the said vehicle and denied its liability. It is also denied the age, income and avocation of the deceased and prayed to dismiss the petition against the Insurance company.
Basing on the above pleadings, the Tribunal framed the following issues:
1) Whether the deceased died in the accident on 22.06.2007 due to the use of Tata Mobile Vehicle bearing No. AP 28 X 4240?
2) Whether the petitioners are entitled for compensation? If so, to what amount and from whom?
3) To what relief?
In support of their claim, the appellants examined PWs.1 and 2 and got marked Exs.A1 to A4. On behalf of the respondents, R.Ws.1 and 2 were examined and Exs.B1 to B3 were marked.
After analyzing the evidence available on record, the Tribunal while awarding compensation of Rs.4,38,000/- with proportionate costs and interest, held that the deceased was travelling as an un- authorized passenger in a goods vehicle and as such the liability 3 cannot be fastened on the Insurance company and that the owner of the vehicle alone is held liable to pay the said compensation. Challenging the said finding, the present appeal is filed by the appellants/claimants.
At the time when the matter was taken up for hearing, learned Counsel for the appellants would submit that in O.P. No.1895 of 2007, which was arising out of very same accident instituted by the legal heirs of one of the deceased, the III-Additional Chief Judge, City Civil Court, Hyderabad, directed the Insurance company to pay the compensation amount and then recover the same from the owner of the vehicle and that no appeal has been filed by the Insurance company against the said award, therefore, he prayed to issue a direction to the Insurance company to pay the compensation amount awarded by the Tribunal and then recover the same from the owner of the vehicle. Learned Counsel for the appellants placed on record the certified copy of the order and decree in O.P.No.1895 of 2007.
Learned Standing Counsel appearing for the Insurance company would submit that O.P.No.1895 of 2007 was filed by the legal representatives of one of the deceased, who died in the same accident, wherein the Tribunal held that the Insurance company is entitled to recover the amount from the owner of the vehicle. He further submits that no appeal has been filed by the Insurance 4 company against the said order, dated 13.11.2009 passed in O.P.No.1895 of 2007.
A perusal of the material on record would show that O.P. No.1895 of 2007, arising out of very same accident, was instituted by the legal heirs of one of the deceased, and that the III-Additional Chief Judge, City Civil Court, Hyderabad, held that the owner of the crime vehicle and the Insurance company are jointly and severally liable to pay the compensation, however, the Insurance Company is entitled to recover the amount from the owner of the vehicle. The relevant portion of the order is extracted hereunder:-
"Coming to the contention of R-2 that the risk of deceased is not covered under policy since she was unauthorized passenger, though the crime vehicle is a goods carriage vehicle, still the seating capacity of the crime vehicle which is Tata Mobile vehicle is 1+4, totaling '5'. There is no dispute about the seating capacity of the vehicle. Such being the case, I am of the opinion that the risk of inmates of said vehicle is covered under the policy. I therefore, see no force in the contention of R-2 in this regard. Admittedly, R1 is owner of crime vehicle and R2 is insurer. Thus, both R1 and R2 are jointly and severally liable to pay the compensation, but R2 is entitled to recover amount from R1."
Admittedly, the order passed by the Tribunal in O.P.No.1895 of 2007, has become final since no appeal has been filed by the Insurance Company. In view of the above, this Court does not 5 intend to take a different view in this matter. Hence, respondents 1 and 2 are jointly and severally liable to pay the compensation awarded by the Tribunal, but the 2nd respondent-insurance company is entitled to recover the amount from the 1st respondent-owner of the vehicle.
With the above modification, the appeal is disposed of. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________ JUSTICE G. SRI DEVI 10.11.2021 Gsn/gkv 6 7