Avula Bhikshmayya, E.G. Dist. vs Patan Gaffar Khan, Guntur Dt. 2 Ot
2022 Latest Caselaw 9601 AP

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           HON'BLE SRI JUSTICE T MALLIKARJUNA RAO

     MACMA.No.1112 OF 2013 and M.A.C.M.A. No.1113 OF 2013

COMMON JUDGMENT :

1.    Both the M.A.C.M.A.'s arose out of the common judgment and

      order passed in MVOP 223 of 2010 and MVOP 345 of 2010 dated

      10th April 2013 by Chairman Motor accidents claims Tribunal

      cum Ist Additional District Judge Rajahmundry, based on

      common evidence, both the appeals are taken up together to

      pass common judgment.

2.    The claimants in MVOP 223 of 2010 filed a claim petition under

      163-A of MV Act read with Rule 455 of A.P.M.V. Rules claiming

      compensation of Rs. 4,00,000/-for the death of Vallepu Gurayya

      @ Guruvulu. Against the orders passed in MVOP 223 of 2010,

      the claimants preferred MACMA 1112 of 2013.

3.    The claimants in MVOP 345 of 2010 filed a claim petition under

      163-A of MV Act read with Rule 455 of A.P.M.V. Rules claiming

      compensation of Rs. 4,10,988/-for the injuries sustained by the

      petitioner Avula Bikshayya. Against the orders passed in MVOP

      345 of 2010, the claimants preferred MACMA 1113 of 2013.

4.    The claimants' case in both M.V.O.P.'s is that on 06.08.2009 at

      about 12.00 a midnight, the 1st respondent drove the lorry

bearing registration No. AP-07-TU-9376 rashly and negligently

while proceeding towards Vijayawada from Rajahmundry. It went

out of the control of the 1st respondent, and he applied carelessly

sudden brakes to the lorry at the place of an accident near

Z.P.H. School on the outskirts of Anathapalli on Kovvuru to

Eluru Road. The lorry gave heavy jerks, and the load in the lorry

was pushed forward and fell on the deceased herein, M.V.O.P.

and another person who was travelling in a said lorry going from

Rajahmundry towards Vijayawada; the accident occurred due to

careless and rash driving of the lorry by the 1st respondent, as a

result of the accident, the deceased in O.P. 223 of 2010 was

crushed between the load in the lorry, the lorry cabin, sustained

severe fracture injuries to the head and other parts of the body

and succumbed to the injuries on the spot. Further, the

petitioner in (MVOP 345 of 2010) was crushed between the load

in the lorry and the lorry cabin and sustained severe fracture

injuries to the head and backbone (spine).

5. In both O.Ps., the driver shown as 1st respondent, 2 and 3 are

the owner and the insurer of the lorry AP-07-TY-9376,

respectively, involved in the accident. As such, all the

respondents are jointly and severally liable to compensate the

petitioners.

6. The 1st respondent remained exparte.

7. 2nd respondent filed a written statement contending that Lorry

MMV is bearing No. A.P. 07 TU 9376 was insured with the 3 rd

respondent's company at the time of the alleged accident, and

there is a valid and effective insurance policy certificate valid

from 28.05.2009 to 19.05.2010 and the same was issued by the

3rd respondent company. So this respondent is not liable to pay

compensation. 1st respondent has a valid and effective driving

licence, at the time of the accident. Hence, the petition is liable

to be dismissed.

8. 3rd respondent's insurance company contended that the claim is

excessive, exorbitant and exaggerated, and the petitioners are

not entitled to the same from this respondent. The driver, the 1 st

respondent, has no valid and effective driving license to drive the

crime vehicle at the time of the accident. The deceased was

travelling as an unauthorized passenger; the risk of an

unauthorized passenger is neither covered under the policy nor

the provisions of the M.V. Act. The petition is liable to be

dismissed.

9. Based on the pleadings, the Tribunal framed the relevant issues.

Before the Tribunal, on behalf of petitioners PWs.1 to 5 got

examined, marked Exs.A1 to A9, Exs.X1 to X7, and on behalf of

the 3rd respondent RW.1 and 2 got examined, marked Exs.B1 to

B3.

10. After considering the evidence on record, the Tribunal held that

the accident occurred due to the driver's rash and negligent

driving of the offending vehicle and the 2 nd respondent is alone

liable to pay the compensation amount. The Tribunal held that

petitioners in O.P. 223 of 2013 are entitled to compensation of

Rs.3,32,000/- with interest @6% p.a from the date of the

petition, apportioned among the petitioners.

11. The Tribunal held the petitioner in O.P.345 of 2010 is entitled to

compensation of Rs.3,13,572/-with interest @6% p.a from the

date of the petition.

12. Heard learned counsel for the appellant and the respondents in

both O.P.s. and perused the records.

13. The learned counsel appearing for claimants in MACMA 1112 of

14. Submits that the Tribunal failed to note the earnings of the

deceased correctly and the personal expenses of the deceased to

be deducted as 1/4th only, as there are only three dependents.

The Tribunal failed to award compensation under the heads of

loss of estate and love and affection for which the petitioners are

entitled, being wife and daughters

15. . Tribunal below rightly awarded compensation by fixing liability

on the third respondent- Insurance Company, though initially

could not draw inference Ex. A9 cover not and Ex. B1 policy

clearly shows the insurance company collected premiums for two

un-named occupants. The evidence of R.W. 1 and RW2 adduced

by the respondent indicates that the Ex. B1 policy has covered

the risk of payment of two un-named occupants though this

portion of evidence is omitted to discuss in the judgment; it

reflects the result based on the cited judgment. The Tribunal

below ought to have followed the correct multiplier and granted

interest @ 9%.

16. The learned counsel for the appellant in MACMA 1113 of 2013

further contends that the Tribunal failed to grant compensation

under the heads of extra nourishment, loss of earning at least

six months and attendant charges.

17. Per contra, the learned counsel appearing for respondents

supported the findings and observation of the learned Tribunal.

18. Now the points for determination are whether the Tribunal is

justified in not fastening the liability on the insurance company.

and whether the compensation amount awarded is just and

reasonable and requires enhancement

POINTS :

19. There is no serious dispute about the manner of an accident.

The finding of the Tribunal that the accident occurred due to

rash and negligent driving of the 1st respondent is also not

disputed. The conclusion of the Tribunal that there is a valid and

efficacious insurance policy issued by the 3rd respondent

company and the 1st respondent has a valid and effective driving

license is also not disputed. Since the said findings and

observations of the Tribunal are not disputed by filing appeals or

cross-examinations, this Court need not refer to the facts

relating to those aspects.

Quantum of the compensation amount awarded in MVOP 223 of 2010.

20. The claimants' case that in O.P. 223 of 2010, the deceased died

due to injuries sustained in an accident is not disputed. It is also

evident from the Ex A2 inquest report and Ex A3 post-mortem

report. The Tribunal has taken the age of the deceased as 45

years per the P. M certificate. The Tribunal has taken the income

of the deceased as 3,000/- per month and applied the multiplier

13 as per schedule II to Sec 163-A is "13", and the Tribunal

deducted 1/3rd of the earnings towards personal and living

expenses and fixed the compensation amount by following the

schedule II to Section 163-A of Motor Vehicle Act. As it is not a

petition filed under Section 166 of the MV Act, petitioners are not

entitled to compensation under the heads of loss of love and

affection as claimed. After considering the material on record,

this Court views that Tribunal awarded just compensation.

Quantum of the compensation amount awarded in MVOP 345 of 2010.

21. After considering the material on record, this Court views that

the Tribunal has granted just compensation as per section 163-A

of the MV Act. The grounds raised by the petitioner concerning

compensation amount are not sustainable as it is not a petition

filed under section 166 of the MV Act. Thus, the findings

recorded by the Tribunal are not to be interfered with and they

are confirmed. Accordingly, this issue is answered.

22. In the case of the petitioners in both M.V.O.Ps., while the

deceased in MVOP 223 of 2010 and the petitioner in MVOP 345

of 2010 were travelling in a lorry, the accident occurred. It is the

evidence of PW 2, who travelled in the lorry, and sat between the

cabin and load. They boarded the lorry with agricultural

implements. The Tribunal observed that it is not their case that

the deceased and the petitioner were engaged by the owner of

goods as coolies for loading and unloading purposes. The

petitioners failed to establish whether they were the owner of the

goods or the authorized representatives. As seen from the record,

though respondents got examined R.W.'s 1 and 2 . the Tribunal

failed to refer to their evidence.

23. R.W. 1 K. Ravi Prasad, working as a manager, claims stated in

his cross-examination Ex. B 1 policy is in force; it was issued at

the Vijayawada office, and a cover note was issued. The cover

note and the policy are both valid. Ex A9 cover is related to Ex

B1 policy. Ex A9 premium was for two un-named occupants, and

the premium mentioned in Ex A9 is correct. The evidence of R.W.

2 M. Nageswara Rao, Typist in the R.T.A. office, shows that he

produced a B-register and permit for a crime vehicle marked as

Ex. X5and X6. He also filed an Ex X7 authorization letter. R.W. 2

further reported that as per Ex X 5 B-register, the vehicle is

classified as a goods carriage MMV. The seating capacity is three,

including the driver in the lorry's cabin. Except for the three

persons mentioned in the permit, none else is entitled to travel

behind the cabin of the crime vehicle.

24. The evidence of R.W. 1 and 2 coupled with Ex A9 cover note and

Ex B1 policy shows the insurance company collected premiums

for un-named occupants, and the seating capacity is three,

including the driver in the lorry's cabin as per Ex B5 register. It

seems that unfortunately the Tribunal, without perusal of the

evidence of R.W.'s. 1 and 2 and the documents got marked

through them. It is observed that there is no evidence to show

that the owner paid an extra premium to cover the risk of non-

fare passengers. It has not followed the citations: In Chinnappan

Vs. K.P. Ramraj and another 1 , in United India Insurance

Company Limited Vs. Sunita and others 2, by observing that

the said decisions deal with the extra premium covering the risk

of passengers, the liability would come up. Had the trial court

properly perused the record, it could have noticed the premium

is collected to cover the risk of non-fare passengers.

25. In a decision between Amritlal Sood vs Kaushalya Devi

Thakar3, the Hon'ble Apex Court held that "the comprehensive

policy issue covers the risk of gratuitous passengers, i.e., the

car's occupants. Therefore, it is clear from the Act itself, the

words of the policy and the decision in Amritlal Sood's case that

a comprehensive policy covers the risk of gratuitous passengers

to the extent of the liability incurred.

26. A three-Judge Bench of the Hon'ble Apex Court in the case of

National Insurance Co. Ltd. Vs Baljit Kaur and Others 4 held

that, considering the question of whether the insurance policy in

respect of goods vehicle is required to cover the gratuitous

passenger in view of the amendment to Section 147 of the Act.

The apex court, after considering all the previous decisions,

concluded that the Insurance Company was not liable as the risk

of an unauthorized passenger in a goods vehicle or gratuitous

2012(3) T.A.C.807 (Mad.)

2008 (4) A.C.J. 111

(1998) 3 SCC 744

(2004) 2 SCC 1

passengers is not covered under the policy and there is a breach

of the condition of the policy in carrying a passenger in a goods

vehicle. Therefore, the vehicle's owner was held liable to satisfy

the decree. However, in paragraph 21, the Court thought that

the interest of justice would be sub-served if the Insurance

Company is directed to satisfy the award in favour of the

claimant, if not, already satisfied and recover the same from the

owner of the vehicle.

27. In a decision between National Insurance Co.Ltd., V. Anjana

Shyam5 The Hon'ble Apex court held that "it does not mean that

an insurer is not bound to pay amounts outside the contract of

insurance itself or in respect of persons not covered by the

contract at all. In other words, the insured is covered only to the

extent the passengers are permitted to be insured or directed to

be insured by the statute and covered by the contract. An

insurance company can be made liable only in respect of the

number of passengers for whom insurance can be taken under

the Act and for whom insurance has been taken as a fact and

not in respect of the other passengers involved in the accident in

a case of overloading. "Keeping that in mind, we think that the

practical and proper course would be to hold that the insurance

company, in such a case, would be bound to cover the higher of

2007 CJ 2129 (SC)

the various awards and will be compelled to deposit the higher of

the amounts of compensation awarded to the extent of the

number of passengers covered by insurance policy".

28. The identical issue once again surfaced in the case of United

India Insurance Co.Ltd., v. K.M.Poonam 6 , the Hon'ble Apex

Court reiterated the relevant provisions of the Motor Vehicles Act

and after taking note of its various earlier decisions, including

Baljit Kaur (supra) and Anjana Shyam (supra), has resolved and

settled the issue thus: "the liability of the insurer, therefore, is

confined to the number of persons covered by the insurance

policy and not beyond the same. In other words, as in the

present case, since the insurance policy of the owner of the

vehicle covered six occupants of the vehicle in question,

including the driver, the liability of the insurer would be confined

to six persons only, notwithstanding the larger number of

persons carried in the vehicle. A such excess number of persons

would have to be treated as third parties, but since no premium

had been paid in the policy for them, the insurer would not be

liable to make payment of the compensation amount as far as

they are concerned".

29. In a decision between Manuara Khatun and others Vs. Rajesh

Kr. Singh and others, it is a case where the Tribunal further

2011 ACJ 917 (SC)

held that all the passengers, including the two deceased, were

travelling in Tata Sumo for hire and hence were held to be

gratuitous passengers. Due to the said reason, United India

Insurance Company Ltd., the insurer of Tata Sumo(offending

vehicle) was not liable". In the facts of the case the Hon'ble Apex

Court held that "in view of the foregoing discussion, we are of the

view that the direction to United India Insurance Company

(respondent No. 3) - they being the insurer of the offending vehicle

which was found involved in causing accident due to negligence of

its driver needs to be issued directing them (United India

Insurance Company-respondent No.3) to first pay the awarded

sum to the appellants (claimants) and then to recover the paid

awarded sum from the owner of the offending vehicle (Tata Sumo)-

respondent No.1 in execution proceedings arising in this very case

as per the law laid down in Para 26 of Saju P. Paul's case quoted

supra". Shamanna and another Vs. The Divisional Manager The

Oriental Insurance Co. Ltd. and Ors. The Hon'ble Supreme Court

held that "to deny the benefit of pay and recover, what seems to

have substantially weighed with the High Court is the reference

to larger Bench made by the two-Judge Bench in National

Insurance Co. Ltd. v. Parvathneni and another. 7 which

doubted the correctness of the decisions in the exercise of

(2009) 8 SCC 785

jurisdiction under Article 142 of the Constitution of India

directing insurance companies to pay the compensation amount

even though the insurance company has no liability to pay. In

the Parvathneni case, the Supreme Court pointed out that Article

142 of the Constitution of India does not cover such types of

cases and that if the insurance company has no liability to pay

at all, then it cannot be compelled by order of the Court in the

exercise of its jurisdiction under Article 142 of the Constitution

of India to pay the compensation amount and later on recover it

from the owner of the vehicle. The above reference in the

Parvathneni case was disposed of on 17.09.2013 by the three-

Judges Bench keeping the questions of law open to be decided in

an appropriate case. Since the reference to the larger Bench in

the Parvathneni case has been disposed of by keeping the

questions of law open to be decided in an appropriate case,

presently, the decision in the Swaran Singh case followed in

Laxmi Narain Dhut, and other cases hold the field. The award

passed by the Tribunal directing the insurance company to pay

the compensation amount awarded to the claimants and,

thereafter, recover the same from the owner of the vehicle in

question is in accordance with the judgment passed by this

Court in Swaran Singh and Laxmi Narain Dhut cases. While so,

in our view, the High Court ought not to have interfered with the

award passed by the Tribunal directing the first respondent to

pay and recover from the owner of the vehicle. The impugned

judgment of the High Court exonerating the insurance company

from its liability and directing the claimants to recover the

compensation from the owner of the vehicle is set aside, and the

award passed by the Tribunal is restored".

30. Coming to the instant case, the vehicle owner paid an additional

premium to cover the liability of two persons. The insurance

company is bound by the terms of the contract. In the present

case, the policy issued by the insurance company is a package

policy. As such, the 3rd respondent is liable to pay the

compensation amount. The evidence of PW 2 shows sufficient

space available in the lorry, only a half load consisting of welding

of iron rod boxes. The said evidence of PW 2 is not at all

disputed.

31. On the other hand, the policy issued under section 147 of the

Motor Vehicles Act is statutory and also called an Act policy. The

insurer's liability under this policy is restricted to indemnify the

insured in respect of the claim made by the third parties and the

owner of the good or his authorized representative who travels in

the goods vehicle along with the goods. It is elicited in the cross-

examination of PW 2 by counsel for R 3 insurance company that

the driver of the insurance company demanded PW 2 and the

deceased pay Rs.10,000/- and they bargained for Rs.6,000/-

towards their fare as well as the samans, i.e., crowbars, spades

and other implements (Podugu, Para and samanulu). Having

elicited the same, the insurance company failed to take steps by

summoning the lorry driver to prove that the evidence was

incorrect. In view of the same, there is no difficulty in holding

that they travelled in the offending vehicle as the owner of goods.

For the foregoing reasons, this Court views that the Tribunal has

not properly perused and considered the evidence on record.

32. In view of the above materials, this Court views that the Tribunal

committed an error in fastening the liability on the 3rd

respondent is liable to pay the compensation amount since the

deceased and injured were not travelled in the cabin. However, it

has not contributed to the accident. This Court views that a

direction can be given to the insurance company to pay and

recover the compensation from the offending vehicle owner.

33. In the result, MACMA 1112 of 2013 and 1113 of 2013 are

allowed by holding that 3rd respondent is liable to pay

compensation amount with interest as awarded by the Tribunal.

The insurance company is directed to deposit the compensation

amount awarded by the Tribunal within two months and recover

the same from the offending vehicle owner by filing an Execution

Petition before the Tribunal. The petitioners in both O.P. are

entitled to compensation amount as apportioned by the Tribunal

and permitted to withdraw as per its terms by applying to the

Tribunal.

34. Miscellaneous petitions, if any are pending, shall stand closed.

__________________________________ JUSTICE T MALLIKARJUNA RAO Date :14.12.2022 BV