HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A.No.1238 of 2007
JUDGMENT:
This Appeal is directed against the judgment and decree dt.06.12.2006 passed in MVOP.No.1951 of 2003 on the file of the V Additional Metropolitan Sessions Judge (Mahila Court) - cum - XIX Additional Chief Judge, City Criminal Courts, at Hyderabad.
2. The appellant herein is insurer / 2nd respondent in the claim petition filed under Section 166(1) of Motor Vehicles Act, (M.V. Act) seeking compensation of amount of Rs.1,00,000/- for the death of one Sreenu in a motor accident dt.10.06.2003. The claim petitioners are the parents of Sreenu / deceased.
3. The claimants' case in brief is that on 10.06.2003, at about 03:00 p.m., when Sreenu / deceased sat in the front portion of the tractor bearing Registration No.AP-28-T-6420, the driver of the tractor drove it at high speed in a rash and negligent manner, thus Sreenu / deceased fell down from the tractor and sustained serious injuries all over his body and while shifting to hospital, died. Consequently, the petitioners filed the claim petition seeking compensation from the owner and insurer of the tractor / 1st and 2nd respondents.
4. The Tribunal, after considering the evidence on record, awarded Rs.86,000/- with interest at 7.00% per annum from the date of petition NTR,J ::2:: macma_1238_2007 till the date of realization, and held that the respondent nos.1 and 2 are jointly and severally liable to pay the compensation.
5. The insurer / 2nd respondent contended that the Tribunal without considering the fact that the deceased was an unauthorized / gratuitous passenger on the tractor, and though it is violation of policy condition, the Tribunal erroneously fastened the liability.
6. The primary issue for determination is "whether the deceased was an unauthorized passenger on the tractor?".
7. The consistent version in the oral evidence of petitioner / PWs.1 and 2, and the respondents and the driver of Tractor as RWs.1 to 3, and the statement of the 1st petitioner in FIR / Ex.A.1 are establishing that, on the fateful day at relevant time Sreenu / deceased was travelling on the tractor, and as the driver of the tractor drove it in a rash and negligent manner, he fell down and suffered severe injuries and later died. In the cross-examination, the 1st and 2nd petitioner as PWs.1 and 2, clarified that their son / deceased was not travelling on tractor as labourer or fare- paid passenger. It is common knowledge that the tractor will not have any accommodation for the passengers and there is no other material to consider otherwise. Therefore, any person other than the driver on the tractor shall be held as an unauthorized passenger. To this extent, the appellant / insurer's claim deserves acceptance.
8. The other pertinent question would be "whether the insurer is liable to indemnify the owner / 1st respondent".
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9. The Manager of 1st respondent as RW.1, categorically stated that the risk of unauthorized / gratuitous passenger is not covered under the insurance policy. A reading of the Insurance of Policy / Ex.B.2 is indicating that it is 'Miscellaneous and Special Type of Vehicles Package Policy', with seating capacity only 'one', and no risk of any worker or passenger is covered.
10. It is obvious that unauthorized passenger who is travelling on the tractor cannot be considered as third-party. Therefore, the provisions of Section 147 of the M.V. Act cannot enjoin any statutory liability on the owner of the vehicle to ensure the risk of the passengers. In effect, the Insurance Company would have no liability in this regard. As the facts of rash and negligent driving of the driver causing accident and the death are concluded, the owner / 1st respondent of the tractor, remains liable to pay for compensation. Thus, the claim of appellant / insurer in this appeal succeeds.
11. Accordingly, the MACMA is allowed. The appellant / 2nd respondent / insurer is exonerated from the liability to indemnify the insured / owner of the tractor in paying compensation to the claimants, as awarded by the Tribunal.
12. The amounts deposited by the appellant / insurer shall be refunded and if the amounts are disbursed to the claimants, the appellant / insurer is at liberty to recover that amount from the 1st respondent / insured. No costs.
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13. As a sequel, miscellaneous petitions pending if any in this Appeal, shall stand closed.
______________________ N. TUKARAMJI, J Date: 23.11.2021 Ndr