Andhra Pradesh High Court - Amravati
National Insurance Co. Ltd., vs Smt. V. Krishnamma And 2 Others, on 20 October, 2021
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.
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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
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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
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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
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
