Smt. K. Krishnaveni 2 Ors. vs Sri K. Anwar Basha Anr.
2021 Latest Caselaw 4726 AP

          HON'BLE SRI JUSTICE NINALA JAYASURYA

                       M.A.C.M.A.No.748 of 2006

JUDGMENT:

Aggrieved by the order dated 02.01.2006 passed by the Chairman,

Motor Accidents Claims Tribunal-cum-V Additional District Judge

(FTC), Anantapur, (for short "the Claims Tribunal) in O.P.No.215 of

2000, the claimants in the said O.P. filed the present appeal.

2. The claimants filed the aforesaid original petition seeking a

compensation of Rs.2,00,000/- for the death of one Subbanna in a motor

vehicle accident that occurred on 14.07.1999. In the O.P., it is averred

that the deceased was aged about 50 years and was doing cultivation and

also seasonal business in groundnut. On 14.07.1999, when said

Subbanna was returning in a lorry bearing registration No.AP 02T 1566

belonging to the 1st respondent with cement load, the driver of the lorry

drove the same in a rash and negligent manner with high speed and

dashed against another lorry bearing registration No.AP 03T 8551 near

Vadiyampeta on Anantapur-Gooty National Highway, as a result of the

same, said Subbanna succumbed to injuries, while he was being shifted

to Government Hospital, Anantapur. The claimants, while claiming a

compensation of Rs.2,00,000/-, examined P.Ws.1 to 3 and got marked

Exs.A.1 to A.9.

3. The 1st respondent-owner of the vehicle was remained ex parte.

The 2nd respondent-Insurance Company filed a counter resisting the

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claim of the claimants inter alia contending that the deceased travelled in

a goods vehicle, which is meant for carrying goods, as an unauthorized

passenger and therefore, the Insurance Company is not liable to pay any

compensation. The 2nd respondent-Insurance Company examined R.W.1

and got marked Exs.B.1 to B.7.

4. Though it was contended that the deceased was travelling in the

lorry along with some cement bags as owner of the goods, the Claims

Tribunal disbelieved the version and rejected the said plea. The Claims

Tribunal categorically recorded a finding that the claimants failed to

prove that the deceased travelled in the lorry for selling sweet oranges in

Hyderabad and was returning in the same lorry as owner of cement bags.

In the light of the said finding and referring to the judgments relied on by

the 2nd respondent-Insurance Company and perusing Ex.B.2, the Claims

Tribunal held as follows:

"In this case, policy issued by R.2 is an act policy and the vehicle is a goods vehicle with open body. In this regard, I rely on a decision reported in 2004 (5) ALT page 222 wherein our Hon'ble High Court held that when the policy issued is an act policy not covering the risk of passengers travelling in the goods vehicle, the owner alone is liable."

5. The Claims Tribunal insofar as the loss of dependency is

concerned, taking the income of the deceased at Rs.1,500/- p.m. as the

deceased was owning some agricultural lands, awarded a sum of

Rs.1,56,000/- towards pecuniary loss and a further sum of Rs.10,000/- for

NJS,J MACMA No.748 of 2006

loss of consortium and Rs.10,000/- towards loss of estate, respectively.

In all, the Claims Tribunal awarded a sum of Rs.1,76,000/- as against the

total claim of Rs.2,00,000/-. The Claims Tribunal, in view of the

findings referred to supra, dismissed the O.P. against the 2nd respondent-

Insurance Company by holding that the 1st respondent-owner alone is

liable to pay the compensation. Aggrieved by the said order and decree,

the present appeal came to be filed.

6. Mr. O. Uday Kumar, learned counsel for the appellants/claimants,

inter alia submits that the order of the Claims Tribunal in dismissing the

O.P. against the 2nd respondent-Insurance Company is not sustainable in

law. He submits that the Claims Tribunal failed to appreciate the

evidence in a proper perspective and grossly erred in coming to a

conclusion that the deceased was travelling as an unauthorized passenger

in the goods vehicle. He contends that since the deceased was travelling

in the goods vehicle along with the goods as owner, the Insurance

Company is liable to pay compensation in respect of the risk during the

course of such travel. The learned counsel also submits that the amount

as awarded by the Claims Tribunal is meager and in fact, the

appellants/claimants are entitled to more compensation than the amount

claimed in the original petition. The learned counsel further submits that

the Claims Tribunal erred in completely exonerating the 2nd respondent-

Insurance Company from payment of compensation and in any event, the

principle of 'pay and recover' should have been applied. Accordingly,

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the learned counsel urges that the appeal may be allowed by enhancing

the compensation and fixing the liability on the Insurance Company.

7. On the other hand, Mr. M. Upendra Rao, learned counsel

representing the 2nd respondent-Insurance Company, submits that the

Claims Tribunal passed the order under challenge after due consideration

of oral and documentary evidence and therefore, no interference is

warranted as prayed for by the learned counsel for the

appellants/claimants.

8. This Court has considered the rival contentions of the learned

counsel and perused the material on record.

9. Though basing on the averments in the original petition, the

learned counsel for the appellants submits that the deceased was

travelling in the goods vehicle along with cement bags as owner of the

same, no documentary evidence was adduced in support of the said

contention. The Claims Tribunal under the said circumstances

categorically held that the status of the deceased at the time of the

accident is that of an unauthorized passenger and as per Ex.B.1-policy,

which was issued for goods carrying vehicle, is an act policy and

therefore, the Insurance Company cannot be made liable to pay any

compensation. In the light of the findings of the Claims Tribunal based

on material on record and thorough appreciation of evidence, the

submission of the learned counsel for the appellants finding fault with the

Tribunal in exonerating the Insurance Company, cannot be accepted. Be

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that as it may. Insofar as the submission of the learned counsel for the

appellants/claimants seeking enhancement of compensation and

application of the principle of 'pay and recover' is concerned, it may be

noted that the appeal against the 1st respondent-owner of the vehicle was

dismissed, by virtue of an order dated 25.04.2016. In such

circumstances, no relief can be granted.

10. Accordingly, the M.A.C.M.A. is dismissed. No order as to costs.

11. Consequently, miscellaneous petitions, if any, pending in the

appeal shall stand disposed of.

_______________________ NINALA JAYASURYA, J 19th November, 2021 cbs

NJS,J MACMA No.748 of 2006

HON'BLE SRI JUSTICE NINALA JAYASURYA

M.A.C.M.A.No. 748 of 2006

19th November, 2021

cbs

NJS,J MACMA No.748 of 2006