The vs Unknown
2023 Latest Caselaw 3825 AP

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   M.A.C.M.A.No. 3890 of 2014

JUDGMENT:

The appellants are claim petitioners and the respondents are

respondents in M.V.O.P.No.100 of 2010 on the file of the Chairman,

Motor Accident Claims Tribunal-cum-VI Additional District Judge,

Markapur. Aggrieved against the exoneration of the 2nd

respondent/Insurance company from payment of compensation and

awarding of meager compensation, the petitioners preferred the

instant appeal.

2. For the sake of convenience, both the parties in the appeal will

be referred to as they are arrayed in the claim petition.

3. The claim petitioners filed the petition under Sections 163-A

and 168 of the Motor Vehicles Act, 1988 against the respondents

claiming compensation of Rs.4,50,000/- for the death of Chikkanti

Galaiah in a motor vehicle accident that took place on 30.03.2005.

VGKR,J MACMA No.3890 of 2014

4. The brief averments in the petition filed by the petitioners are

as follows:

On 30.03.2005 the deceased and his relative went to Venkata

Chalampalli on personal work. During their return journey at

Kurichedu, they purchased provisions and one rice bag for their

necessities and boarded a lorry bearing registration No.AP 02U

1170 of the 1st respondent to proceed to their village by paying fare

to the driver of the lorry. On the way, due to rash and negligent

driving of the lorry by its driver, the driver of the lorry lost control

over the lorry and thereby, the lorry turned turtle, resulting in the

instantaneous death of the deceased. The 1st respondent is owner

and the 2nd respondent is insurer of the lorry, hence, both the

respondents are jointly and severally liable to pay compensation to

the petitioners.

5. The respondents filed written statements separately by

denying the manner of accident, age, avocation and income of the

VGKR,J MACMA No.3890 of 2014

deceased. It is pleaded by the 2nd respondent/Insurance company

that as the deceased was a gratuitous passenger and the driver of

the lorry of the 1st respondent allowed the deceased to travel in the

lorry in violation of the terms and conditions of the policy, the 1 st

respondent being owner is responsible for payment of compensation.

6. Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

1) Whether the death of the deceased is due to the act of the driver of lorry bearing No.AP 02U 1170?

2) Whether the petitioners are entitled for compensation as claimed, if so, against whom?

3) To what relief?

7. During the course of enquiry in the claim petition, on behalf of

the petitioners, P.W.1 was examined and Exs.A.1 to A.5 were

marked. On behalf of the respondents, R.W.1 was examined and

Exs.B.1 to B.3 were marked.

VGKR,J MACMA No.3890 of 2014

8. At the culmination of the enquiry, based on the material

available on record, the Tribunal came to the conclusion that the

accident occurred due to rash and negligent driving of the driver of

offending lorry and accordingly, awarded an amount of

Rs.3,35,000/- with proportionate costs and interest at 9% p.a. from

the date of petition till the date of deposit against the 1st respondent

only and dismissed the claim petition against the 2nd

respondent/Insurance company. Aggrieved against the exoneration

of the Insurance company from the liability of payment of the

compensation amount, the petitioners preferred the instant appeal.

9. Heard learned counsels for both the parties and perused the

record.

10. At the time of hearing, learned counsel for the

appellants/petitioners has confined his arguments only to the aspect

of fixation of liability for payment of compensation.

11. Now, the point for determination is:

VGKR,J MACMA No.3890 of 2014

Whether the order of the Tribunal needs any interference of this Court, if so, to what extent?

12. POINT: Since the learned counsel for the

appellants/petitioners has confined his arguments only to the aspect

of fixation of liability for payment of compensation, there is no need

to interfere with the findings recorded by the Tribunal on the other

aspects of proving of accident and awarding of compensation.

13. Learned counsel for the appellants/petitioners mainly

contended that the 2nd respondent/Insurance company cannot

escape from liability of payment of compensation and it has to pay

third party risks in the first instance and recover the same from the

owner of the offending vehicle. In support of his contention, he relied

on the decision of the Hon'ble Supreme Court in Shivaraj Vs.

Rajendra (Civil Appeal Nos.8278-8279 of 2018 dated 05.09.2018

arising out of SLP (C) Nos.1116-1117/2018) as well the judgments

of this Court in M.A.C.M.A.No.3081 of 2007 dated .02.2020 and

M.A.C.M.A.Nos.3632 of 2005 & 664 of 2006 dated 15.11.2021.

VGKR,J MACMA No.3890 of 2014

14. The pleadings of the petitioners itself show that the deceased

purchased provisions and one rice bag for their necessities and

boarded the offending lorry to proceed to their village by paying fare

to the driver of the lorry for himself and his relative. Therefore, the

pleadings of the petitioners and the oral evidence on record clearly

proves that the deceased was a gratuitous passenger at the time of

accident, and the driver of the offending lorry, in violation of the

conditions of the policy, allowed the deceased to travel in the

offending lorry as a gratuitous passenger. Further, as per Ex.A.1-

first information report, apart from the deceased, several other

persons travelled in the offending lorry and most of them sustained

injuries in the accident. Therefore, by giving cogent reasons, the

Tribunal held in its order that the 2nd respondent/Insurance company

cannot be fastened with the liability to indemnify the 1 st

respondent/owner. Therefore, the facts and circumstances in the

decisions cited by the learned counsel for the appellants/petitioners

are different to the instant case and those are not applicable to the

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case on hand. Therefore, there is no need to interfere with the said

finding given by the Tribunal.

15. For the foregoing discussion, I do not find any legal flaw or

infirmity in the findings given by the Tribunal and the impugned

order is perfectly sustainable under law and it warrants no

interference and the appeal is devoid of merits, therefore, it is liable

to be dismissed.

16. Accordingly, the appeal is dismissed, while confirming the

decree and order dated 16.05.2012 passed by the Chairman, Motor

Accident Claims Tribunal-cum-VI Additional District Judge,

Markapur, in M.V.O.P.No.100 of 2010. No order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the

appeal shall stand closed.

_______________________________ V.GOPALA KRISHNA RAO, J th 8 August, 2023 cbs

VGKR,J MACMA No.3890 of 2014

HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

M.A.C.M.A.No. 3890 of 2014

8th August, 2023 cbs