THE HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A. No.1185 of 2015 and 2429 of 2016
COMMON JUDGMENT :
Both M.A.C.M.A.No.1185 of 2015 and 2429 of 2016 have been
filed by the Oriental Insurance Company Limited as well as the
owners of the Tractor and Trailer bearing No.AP 36 A 9484 and 9485
respectively, being aggrieved by the judgment passed by the Tribunal
in M.V.O.P.No.941 of 2009.
2. Respondent No.1 is the wife and respondent Nos.2 and 3 are the
minor children of the deceased Uppalaiah. On 09.01.2008 at about 10.00 a.m., due to rash and negligent driving of tractor and trailer bearing No.AP 36 A 9484 and 9485 by its driver, the deceased, who sat on the trolley, slipped his balance and fell down on the road, due to which the rear side of the tractor tyre ran over him and succumbed to injuries while undergoing treatment.
3. The Tribunal, on evaluation of oral and documentary examining the oral and documentary evidence on record, partly allowed the O.P., awarding a total compensation of Rs.4,59,000/- along with costs and interest @ 6% per annum from the date of petition till the date of deposit.
4. Heard both sides and perused the record.
5. The grounds raised by the learned Standing Counsel for Insurance Company regarding unauthorized passenger, in Manuara GSD, J M.A.C.M.A.Nos.1185 of 2015 & 2429 of 2016 2 Khatun v. Rajesh Kr.Singh1, the Hon'ble Supreme Court dealt with the case of gratuitous passengers and held that the claimants are entitled for an order against the insurer to pay the awarded sum to the claimants and then to recover the said amount from the insured in the same proceedings. Further, in a recent judgment in Anu Bhanvara v. Iffco Tokio General Insurance Company Limited2, the Hon'ble Supreme Court dealt with the similar issue by referring its earlier judgments in National Insurance Co. Ltd. V. Baljit Kaur3 and Manuara Khatun (supra) apart from other judgments, invoked the principle of 'pay and recover', in the peculiar facts and circumstances of the case. In Manuara Khatun (supra), the Apex Court at para No. 16 held as under:-
"16. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul and another (2013 (2) ALD 95 (SC)), wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was traveling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view of the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover"."1
(2017) 4 SCC 796 2 Laws (SC) 2019 840 3 2004 ACJ 428 GSD, J M.A.C.M.A.Nos.1185 of 2015 & 2429 of 2016 3
6. The said judgments of the Hon'ble Supreme Court has also been quoted by the Tribunal, while answering the issue of gratuitous passengers at para 20 of the judgment, viz., United India Insurance Company Limited v. Serjerao and others4, New India Assurance Company Limited v. Neeradi Kaspa Sattavva and another5, Dudekula Salabee v. R.Siva Sankar Reddy and another6. In the case of United India Insurance Company Limited vs. Serjerao (4 supra), the Hon'ble Supreme Court held that the Insurance Company is not liable so far as labourers travelling in trolleys is concerned. However, while answering issue No.2 at para 19, the Tribunal has categorically dealt that the deceased was not travelling in the tractor- trailer as a labourer, but he was travelling as an unauthorized passenger/gratuitous passenger and it was dealt by the Tribunal that the accident occurred when the tractor was not put to use for agricultural purpose and the Insurance Policy, according to Ex.B.1 was in force at the time of accident, covering the risk of the driver. According to Exs.B.3, the Registration Certificate of the Tractor, the seating capacity of the tractor was only one person. Thus, entire documentary evidence clearly indicates that the driver of the tractor has violated the terms and conditions of the policy by unauthorisedly permitting the deceased and several persons together with trailer as passengers. However, the deceased being the third party and the legislation is made for the benefit of the third parties to cover their 4 2008(1) T.A.C.6 (S.C.) 5 2009 (4) T.A.C. 642 (A.P.) 6 2008(1) ALD 161 GSD, J M.A.C.M.A.Nos.1185 of 2015 & 2429 of 2016 4 risk and since the deceased falls under the category of third party, the Insurance Company is directed to pay the compensation at the first instance and to recover the same from the owner of the crime vehicle. I do not find any manifest error in the aforesaid finding arrived at by the Tribunal and I also find no force in the arguments advanced by the respective counsel for the Insurance Company as well as the counsel for owners of the vehicle i.e., Tractor and Trailer.
7. The appeals are devoid of merits and they are accordingly dismissed. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
____________________ JUSTICE G.SRI DEVI Date: 20.01.2022 mar