Kankipati Salmon And 3 Others vs Dasari Ramaiah And 2 Others
2023 Latest Caselaw 589 AP

         HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

                      MACMA No.59 of 2012

JUDGMENT:

1. Aggrieved by the order dated 13.06.2011 in MVOP No.129 of

2010 passed by the Chairman, Motor Accidents Claims Tribunal-

cum- I Additional District Judge, Ongole (for short 'the

Tribunal'), the claimants have preferred this appeal for not

fastening liability on the 3rd respondent/insurance company.

2. The parties will be referred to as arrayed in the MV OP for

convenience.

3. The petitioners filed the application under Sections 166 of the

Motor Vehicles Act for compensation of Rs.6,00,000/- for the

death of one Kankipati Ramadevi (hereinafter referred to as

'deceased'), who died in a motor vehicle accident.

4. It is the claimant's case that the deceased was 30 years and she

was earning Rs.6,000/- per month by doing coolie work. On

09.03.2010 in the morning, the 1st respondent, the driver of

tractor bearing No.27Y3706 and trailer bearing No.AP27Y3707

(hereinafter referred to as 'offending vehicle') was carrying the

deceased and others as coolies to the Bengalagram field of one

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Kamma Lakshmi Narayana for coolie work of loading

Bengalgram into trailer and unloading later. The 1st respondent

drove rashly and negligently at 11.30 AM when they reached the

tobacco field of Damacharla Sreenu, the offending vehicle turned

turtle. As a result, the deceased and others fell. The deceased

sustained fatal injuries and died on the spot. A case is registered

against the offending vehicle's driver. As per the insurance policy

for the offending vehicle, the liability of six coolies for loading

and unloading operation, is covered.

5. Respondents 1 and 3 filed counter-denying the allegations in the

petition. The 2nd respondent adopted the same. In the counter of

respondents 1 and 3, it is stated that the 1st respondent was very

slow at the time of the accident; he was a well-experienced

driver; had a valid driving license to the driver; the insurance

policy covered the tractor and trailer.

6. Based on the pleadings, the Tribunal has formulated relevant

issues. On behalf of the claimants, PWs.1 to 3 got examined and

marked Exs.A.1 to A.5; on behalf of respondents, RW.1 got

examined and marked Exs.B1 to B7. 3rd respondent was

permitted to take all the defence available to 2nd respondent per

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the orders passed in IA.No.505 of 2011 under Sections 149 and

170 of the MV Act.

7. After evaluating the evidence on record, the Tribunal held that

the accident occurred due to the rash and negligent driving of

the offending vehicle's driver. The deceased died due to injuries

sustained in the accident. The Tribunal granted a compensation

amount of Rs.3,69,500/- with interest at 6% p.a., from the date

of petition till the date of realization against respondents 1 and

2. The petition is dismissed against the 3rd respondent. The

respondents do not assail the said findings of the Tribunal by

filing an appeal or cross-objections. As seen from the grounds of

appeal, the claimants have not disputed the quantum of

compensation awarded by the Tribunal.

8. The learned counsel for the appellants contended that the

Tribunal grossly erred in holding that the driver had a non-

transport license only and violated the policy conditions; at the

time of the accident, the offending vehicle was not carrying any

goods. As per the policy terms, the legal liability for coolies is

applicable when they are employed for loading and unloading

operations. The appellants were engaged as coolies for loading

and unloading Bengal gram bags into the offending vehicle.

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9. Learned counsel for the respondents supported the Tribunal's

findings and observations.

10. Now the point for determination is,

Whether the Tribunal erred in not fastening the

liability on the Insurance Company?

Point:

11. As seen from the grounds of appeal, the appellant's company

have not seriously disputed the quantum of compensation

awarded. As already observed, there is no serious dispute

regarding the manner of the accident. It is unnecessary to refer

to the facts relating to the accident.

12. The insurance company contends that, as per the petitioner's

case, at the time of the accident, the deceased was travelling in

the trailer as a coolie for loading and unloading the Bengal

gram in the offending vehicle. The finding of the Tribunal that

as per Ex.B4 attested copy of DL Extract, the 1st respondent

had a driving license and could drive a non-transport vehicle

only. Either party does not dispute the said finding of the

Tribunal. The Tribunal observed that there is a violation of the

terms and conditions of the insurance policy, for which the

driver shall have a transport license. It is the evidence of RW.1 -

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G. Chandra Sekhar that as per the Ex.B2 registration copy of

the tractor and Ex.B3 Registration copy of the trailer, they are

registered as transport vehicles for commercial use. To drive the

same, the driver must possess a driving license with T&T

Transport endorsement. To show that the driver did not have

such a license, it relied on Ex.B4 driving license of 1st

respondent.

13. In light of the above evidence on record, when the facts and

evidence in the instant case are considered, it is not a case of the

driver not holding the license at the time of the accident. An

identical question came to be considered by the Apex Court in

Santalal Vs. Rajesh and others1, in which it was held as follows

"the Apex Court has considered the question of whether the holder of a licence for a light motor vehicle can drive a tractor attached to the trolley carrying goods and also whether a separate endorsement is required authorizing him to drive such a transport vehicle.

We have answered the question that a driver with a licence to drive a light motor vehicle can drive such a transport vehicle of L.M.V. class. And there is no necessity to obtain a separate endorsement since the tractor attached to the trolley was a transport vehicle in the light of the motor vehicle category. Hence, there was no breach of the conditions of the policy.

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Accordingly, in view of the answer given to reference by the three-Judge Bench of this Court in Mukund Dewangan vs Oriental Insurance Co. Ltd. etc. (Civil Appeal No.5826 of 2011), these appeals have to be here allowed. The right given to the insurer to recover the amount from the owner is hereby set aside. The liability is held to be joint and several of owner, driver and insurer."

By following the principles in the said decision, this Court finds

that the contention raised by the respondent/insurance company

cannot be accepted.

14. It is the contention of the insurance company that no premium

was paid to cover the risk of the coolies. So the insurance

company is not liable to pay the compensation amount.

Regarding the contention raised by the insurance company, I

have carefully gone through the terms of the policy. As per the

evidence of RW.1 - G. Chandra Sekhar, Legal Executive, the 3 rd

respondent issued Ex.B1 policy under framers package product

to respondent NO.2 regarding tractor and trailer bearing

No.AP27Y3706 and AP27Y 3707 vide policy number OG-10-1816-

5001-00000677 valid from 12-Nov-2009 to 11-Nov-2010. The

said policy was in existence as of the alleged accident date. It is

the evidence of RW.1 that the deceased and others were travelling

in the offending vehicle as unauthorized passengers.

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15. The 1st petitioner examined as PW.1, the deceased's husband;

PW.1 stated in his cross-examination that one Kamma Lakshmi

Narayana engaged the offending vehicle with coolies on hire for

coolie work, and he does not know the conditions of the policy.

Coming to the evidence of RW.1, in this regard, Ex.B1 policy does

not cover the risk of unauthorized passengers in the tractor and

trailer. In the cross-examination, RW.1 stated that even after

perusal of the Ex.B6 policy handed over to him, he could not say

whether it was genuine or not. He admitted that the policy

referred to in Exs.B1 and B6 are one and the same and which are

issued from 12.11.2009 to 11.11.2010. The name of the insured

persons in Exs.B1 and B6 policy copies is one and the same. He

admitted that Ex.B1 product is a 'framers' package. RW.1

admitted that the cover note numbers in Exs.B1 and B6 are one

and the same the same, and the vehicle description in Exs.B1

and B6 policy copies are noted as the same. He further deposed

that if there is any necessity, he will enquire with the Ongole

Branch office of 3rd respondent insurance company to know

about the genuineness of the Ex.B1 policy. He admitted that as

per Ex.B1, it was issued in the Ongole Branch of 3rd respondent

insurance company. He denied the suggestion that he knows all

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the facts of Ex.B1 policy but intending to suppress the fact; he is

deposing falsely. He denied the suggestion that 3rd respondent

created Ex.B1 policy. However, the claimants contended that

Ex.B6 policy was issued by the insurance company, and the

Ex.B1 policy was produced to defeat the claim of the claimants.

Except for relying on Ex.B6, the claimants have not taken further

steps. In view of the same, this Court is inclined to consider

Ex.B1 policy to decide the insurance company's liability.

16. As per Ex.B.1-insurance policy, an amount of Rs.550/- was

collected attached trailer and others for one trailer; L.L. to person

for operation/maintenance for one person.

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

National Insurance Co. Ltd. Vs Baljit Kaur and Others 2 ,

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

passengers is not covered under the policy. There is a breach of

2004(2) JLJ 127

MACMA_59 of 2012

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

interests 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.

18. In Shivaraj vs Rajendra 3 , the Hon'ble Apex Court, in the

following facts of the case, held that

".....the High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger who was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the tractor's owner. That conclusion reached by the High Court, in our opinion, is unexceptionable in the present case.

.....At the same time, however, in the facts of the present case, the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with the liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs

2018 Law Suit (SC) 853

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Swarna Singh & Others 2004 3 SCC 297 1, Mangla Ram Vs. Oriental Insurance Co. Ltd. 2018 5 SCC 656, Rani & Ors. Vs. National Insurance Co. Ltd. And others 2018 9 Scale 310 including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. 2017 4 SCC 796. In other words, the High Court should have partly allowed the appeal preferred by respondent No.2. therefore, the appellant may get relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with the liberty to recover the same from the tractor owner".

19. In Shamanna and another Vs. The Divisional Manager The

Oriental Insurance Co. Ltd. and Ors.4, the Apex 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(2009) 8 SCC 785) which doubted the correctness of the decisions in the exercise of 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,

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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 exonerates the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside, the award passed by the Tribunal is restored".

20. In United India Insurance Company Limited Vs. Tam Tam

Venkata Reddy and others5, it observed that,

".....Admittedly all the claimants who were travelling in the vehicle were injured because of the accident, and only a trump card for the Insurance Company order to get absolved from the liability is a violation of the terms and conditions of the policy. This ground is not available for the Insurance Company to deny compensation to the injured, who are third parties, in view of the law laid down by the Apex Court in the decisions reported in New India Assurance Co. Ltd. v. Kamla, 2001 (3) A.L.D. 24 (S.C.): 2001 ACJ 843, United India Insurance Co. Ltd. v. Lehru, 2003 (3) A.L.D. 20 (S.C.) : (2003) 3 SCC 338 and N.I v. Baljit Kaur, 2004 (1) ALD 98 (SC) : 2004 (1) Scale 124".

"......If all the above three judgments are read together, the intention of the Apex Court though under different contexts is crystal clear i.e, even if there is violation of the terms and conditions of the policy, either by way of insured vehicle being driven by a driver not possessing valid licence or the insured vehicle carrying gratuitous passengers, or violation of the terms and conditions of the policy in any other manner, the liability of the insurer to pay compensation to the third party - injured, does not cease. At best, the insurer after paying the compensation to the injured can later recover the same from the insured, by proving the alleged breach of policy

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conditions since the accident occurred prior to 3.12.2002 i.e, the date of the judgment in Asha Rani's case".

21. Coming to the instant case, the offending vehicle's owner paid an

additional premium for trailer to cover the L.L. to person for

operation and maintenance for one person. The insurance

company is bound by the terms of the contract.

22. 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 the policy is restricted to indemnify the

insured in respect of the claim made by third parties, the owner

of the goods, or an authorized representative who travels in the

goods vehicle along the goods.

23. According to my opinion, even a worker who travels in the vehicle

to load and unload Bengal gram may be considered his

authorized representative of the owner of the goods travelling in

the offending vehicle as a third party. On that ground, the

Insurance Company is liable to pay compensation, as a statutory

liability, to the third party who was travelling as a worker in the

offending vehicle along with the goods being his authorized

representative of owner carried in the vehicle. So, on that

ground, the insurance company cannot deny the liability of

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workers travelling in the offending vehicle at the time of the

accident.

24. The evidence on record shows that the deceased was proceeding

in the offending vehicle, though 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's owner, as there is no seating provided to

the worker/employee in the trailer.

25. In the light of the law laid down by the Apex Court and High

Court, this Court finds that the contentions raised by the

claimants that the third respondent/ Insurance company can be

fastened with the liability by paying the amount to the appellants

and recovering the same from the owner of the offending vehicle

are sustainable.

26. As a result, the appeal is allowed without costs by modifying the

award passed by the Tribunal by directing the 3rd

respondent/insurance to pay the compensation awarded by the

Tribunal along with interest, thereon to the claimants at the first

instance. Thereafter it shall recover the same from the owner of

the offending vehicle without initiating separate proceedings by

filing Execution Petition before the Tribunal. Except for

MACMA_59 of 2012

modifying the above, the award passed by the Tribunal holds

good in all other aspects.

27. Miscellaneous petitions pending, if any, in this appeal shall

stand closed.

------------------------------------- T. MALLIKARJUNA RAO, J Dt.03.02.2023.

KGM