Andhra Pradesh High Court - Amravati

Divl Mgr, Oriental Insurance Co ... vs Yerramsetty Lakshmi 4 Others on 6 February, 2023

Bench: T Mallikarjuna Rao

             HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                        M.A.C.M.A. No.734 of 2015
JUDGMENT:

1. Aggrieved by the Judgment dated 03.04.2013 in MVOP.No.321 of 2011

passed by the Chairman, Motor Accident Claims Tribunal - Cum - VI

Additional District Judge (F.T.C.), Guntur (for short 'the Tribunal'), the

Oriental Insurance Company, the 2nd respondent in M.V.O.P. preferred

this appeal questioning the correctness of the Tribunal's Award.

2. For the sake of convenience, hereinafter, the parties will be referred to as

per their rankings in the M.V.O.P.

3. The petitioners filed a claim under sections 140 and 163-A of the Motor

Vehicles Act and rule 455 and 476 of A.P.M.V.Rules for compensation of

Rs.4,00,000/- for causing the death of Yerramsetty Nagaraju (hereinafter

be referred as 'deceased') in a motor vehicle accident.

4. The claimant's case is that the deceased worked as a Sweeper in a

private college at Yanamalakuduru and used to earn Rs.3,300/- per

month. On 06.06.2010 at about 07.00 PM, the deceased, his wife,

daughter and one Prasad boarded at Chilakaluripeta in a lorry bearing

No.AP27Y6449 (hereinafter referred to as 'offending vehicle') by paying

Rs.700/- towards transportation charges of the said luggage to go to

Vijayawada to shift their family along with their luggage, i.e., household

articles like cots, clothes, cookware, chairs and other household utensils

etc. When the offending vehicle reached Atmakuru village, the offending

vehicle's driver drove it rashly and negligently and applied sudden

breaks carelessly; as a result, the lorry turned turtle; the deceased and

others fell from the lorry, and the deceased died on the spot due to

multiple injuries all over his body. The other three goods owners

travelled in the lorry died on the spot. A case was registered in Cr. No.94

of 2010 for the offence under Section 304-A I.P.C. by Station House

Officer, Mangaligiri against the offending vehicle's driver.

5. Respondent No.3 remained exparte.

6. Respondents 1 and 2 filed written statements separately. The 1st

respondent submitted that there was no negligence on the part of the

offending vehicle's driver; he had a valid driving license at the time of the

accident; the offending vehicle had a valid insurance policy at the time of

the accident. Hence the 1st respondent is not liable to pay the

compensation.

7. The 2nd respondent/insurance company submitted that there was no

rash and negligent on the part of the offending vehicle's driver; the

driver had no proper driving license; the 1st respondent violated the

terms and conditions of the policy; the petition is bad for non-joinder of

necessary parties.

8. Based on the pleadings, the Tribunal framed the relevant issues. Before

the Tribunal, on behalf of petitioners, PWs.1 and 2 got examined,

marked Exs.A1 to A7, and Exs.X1 to X3, and on behalf of the

respondents, RWs.1 and 2 got examined, marked Exs.B1 and B2.

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

accident occurred due to rash and negligent driving of the offending

vehicle's driver and hence the deceased died. The Tribunal held that

petitioners are entitled to compensation of Rs.3,62,000/- with interest at

7.5% p.a from the petition date against the respondents.

10. Heard learned counsel for the appellant and the respondents and

perused the records.

11. The learned counsel appearing for the appellant contended that the

Tribunal had not considered the evidence of the insurance company. The

offending vehicle involved in the accident is a goods carrier, and

passengers are not allowed; the deceased was a gratuitous passenger.

The Tribunal has not observed a clear violation of policy conditions. The

Tribunal erroneously fastened the liability on the insurance company

instead of exonerating its liability by considering the evidence of RWs.1

and 2. The Tribunal also has not considered Exs.X1 to X3 and has not

properly gone through the F.I.R. and charge sheet, which clearly shows

that the offending is a goods-carrying vehicle and the deceased was an

unauthorized passenger. The Tribunal has not observed that the

insurance company is not liable when there is a violation of policy

conditions.

12. Per contra, the learned counsel appearing for respondents supported the

findings and observation of the learned Tribunal.

13. Now the point for determination is whether the Tribunal erred in

fastening the liability on the insurance company.

POINT :

14. 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 offending vehicle's driver is also not in dispute. The finding

of the Tribunal that the death of the deceased occurred due to rash and

negligent driving of the offending vehicle's driver is also not in dispute.

The said findings are not challenged by the insurance company despite

the filing of the appeal. The finding of the Tribunal that the Ex.B1 policy

was in force at the time of the accident is also not challenged by the in-

surance company by filing an appeal or cross-objections. The insurance

company has also not disputed the quantum of compensation as

awarded by the Tribunal. A reading of the Award passed by the Tribunal

shows that the Tribunal has granted just and reasonable compensation

by following the principles laid down in D. Krishna Krishnaveni Vs. Md.

Sikinder, 2009 (6) ALT 620 Tamilnadu Transport Corporation Limited Vs.

Raja Priya 2005 (4) A.L.T. 14 S.C., Oriental Insurance Company Insurance

Limited Vs. Devireddy Kondareddy and others 2003 S.C.C. 3.

15. The prime contention of the appellant is that the deceased travelled in

the vehicle as an owner of the goods but not a gratuitous passenger. The

1st petitioner, the mother of the deceased is examined as PW.1, it is the

evidence of PW.1 that on 06.06.2010 at about 07.00 PM, the deceased

along with his wife by name Nuka Ratnam, her daughter Bhavani and

another started from Chilakaluripeta intending to shift their family to

Yanamalakuduru along with their goods by engaging the offending ve-

hicle and paid an amount of Rs.700/- towards transportation, the de-

ceased was travelling in the offending vehicle in the capacity of owner of

goods. In the cross-examination of PW.1, it is elicited that it is true that

there are already goods in the said lorry. She denied the suggestion that

her son boarded the goods lorry as an unauthorized passenger, and the

insurance company is not liable to pay the amount. The driver of the of-

fending vehicle was examined as PW.2. According to his evidence, the

lorry met with an accident on 06.06.2010 at 10.00 AM at Atmakuru vil-

lage and his lorry capacity was 21 tons, he loaded pipes of 17 tons and

after consultation with his owner. He took the luggage of said four per-

sons in his lorry; he denied the suggestion that as the passengers paid

money to him, he allowed them as mid-way passengers. The evidence of

PWs.1 and 2 shows that the deceased and others travelled in the lorry

along with their goods. The evidence of PW.2 shows that he only permit-

ted the deceased and others to travel in the lorry. However, RW.1 - Me-

kala Rami Reddy, the Development Officer of the Insurance Company,

stated in his cross-examination that they collected a premium for carry-

ing goods in the offending vehicle and had no personal knowledge about

the accident. In view of the same, much credence cannot be attached to

the evidence of RW.1 that the deceased travelled in the vehicle as an un-

authorized passenger. Coming to the evidence of RW.2 - K. Vijaya Ku-

mar, Senior Assistant in the R.T.A. office, he deposed that the cabin

driver, cleaner and owner of the goods can travel, and no persons were

permitted to travel in the carriage of the vehicle. In support of the said

evidence, he relied on Ex.X2 - attested copy of R.C. particulars and

Ex.X3 attested copy of the permit. As already observed, it is the case of

the claimants that the deceased travelled in the vehicle as an owner of

the goods.

16. Though PWs.1 and 2 were cross-examined on behalf of the insurance

company, nothing was elicited to discredit their evidence. Contradicting

the evidence of PWs.1 and 2, the respondent/insurance company did not

choose to examine any witness who had got personal knowledge relating

to the fact that to in what capacity the deceased travelled lorry. In the

absence of such evidence, this Court finds no reason to disbelieve the

testimony of PWs.1 and 2; on the other hand, the insurance company

has taken the main objection that there are no such recitals in F.I.R.

and Charge sheet.

17. On perusal of the charge sheet, it shows that there is a clear recital in it

that on the night of 06.06.2010, having collecting of all the household

articles, the deceased left their residence at Chilakaluripet and about

07.00 PM, the driver of the offending vehicle allowed the deceased 1 to 4

to stand in the lorry body between the cabin and the iron load. It is not

mentioned in the charge sheet that the deceased and others loaded the

household articles and were allowed to travel in the lorry. After consider-

ing the oral and documentary evidence on record, this Court believes

that the Tribunal has correctly appreciated the evidence on record and

concluded that the deceased travelled in the vehicle as the owner of the

goods. The evidence on record shows that the deceased did not travel in

the lorry cabin and travelled between the cabin and the iron load against

the rules and regulations.

18. Thus it is established that the deceased was travelling as a representa-

tive of the owner of goods in the offending vehicle. The Tribunal relied on

a decision in Ramesh Kumar Vs. National Insurance Company in

2001 ACJ 1565 (S.C.), the Apex Court held that "if a passenger is tra-

velling along with his goods on the vehicle then he cannot be termed to

be a gratutitious passenger". The Tribunal also relied on a decision San-

jeev Guptha and others Vs. Ram Pal and others 2001 ACJ 2397,

wherein the Allahabad High Court held that "certain small shop keepers

were travelling in the truck on fateful day along with their goods and in

such circumstances they cannot be termed to be gratuitous passengers,

but in fact they were bonafide passengers travelling along with their

goods".

19. On the other hand, the policy issued under section 147 of the Motor Ve-

hicles Act is statutory and also called an Act policy. The Insurer's liabili-

ty 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 au-

thorized representative who travels in the goods vehicle along with the

goods. The material on record shows that the deceased travelled in the

goods vehicle as an owner of the goods.

20. The provision of Section 147 of the Act, 1988 came to be amended by

the Amendment Act, 1994, and the expression "including the owner of

the goods or his authorized representative carried in the vehicle" was

added to it. The correctness of the decision in Satpal Singh's case was

reconsidered by the three Judges Bench of Hon'ble Apex Court in the

case of New India Assurance Company Limited Versus Asha Rani and

others.1. The Three Judges of Hon'ble Apex Court in para No. 9 of said

Asha Rani's case held as under:-

"9. In the Satpal case the Court assumed that the provisions of Section 95(1) of the Motor Vehicles Act, 1939 are identical with Section 147(1) of the Motor Vehicles act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994, it was not necessary for the Insurer to insure against the owner of the goods or his authorized representative being carried in a goods vehicle. On an erroneous impression, this Court came to the conclusion that the Insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorized rep- resentative when being carried in a goods vehicle the acci- dent occurred. If the Motor Vehicles Amendment Act of 1994 is examined, particularly Section 46, by which the expres- sion "injury to any person" in the original Act stood substi- tuted by the expression "injury to any person including the owner of the goods or his authorized representative carried in the vehicle", the conclusion is irresistible that prior to the afo- resaid Amendment Act of 1994, even if the widest interpre- tation is given to the expression "to any person" it will not cover either the owner of the goods or his authorized 7 FA- 1388-16 representative being carried in the vehicle. The ob- jects and reasons of clause 46 also state that it seeks to amend Section 147 to include the owner of the goods or his authorized representative carried in the vehicle for the pur- poses of liability under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute. But a plain meaning being given to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions referred to ear- lier, it is difficult for us to construe that the expression "in- cluding the owner of the goods or his authorized representa- tive carried in the vehicle" which was added to the pre- existing expression "injury to any person" is either clarificato-

ry or amplification of the pre-existing statute. On the other

(2003) 2 SCC 223

hand, it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and make it compul- sory for the Insurer to insure even in case of a goods vehicle, the owner of the goods or his authorized representative being carried in a goods vehicle when that vehicle met with an ac- cident and the owner of the goods or his representative either dies or suffers bodily injury. The Judgment of this Court in the Satpal Case, therefore, must be held to have not been correctly decided and the impugned Judgment of the Tribun- al, as well as that of the High Court, accordingly are set aside, and these appeals are allowed.

21. The aforesaid observations of the Hon'ble Apex Court were relied

upon in Oriental Insurance Company Limited Versus Devireddy

Konda Reddy, reported in (2003) 2 SCC 339, National Insurance

Company Limited Versus Cholleti Bharatamma (2008) 1 SCC 423,

as well as in the case of Manager, National Insurance Company

Limited Versus Saju P. Paul and another (2013) 2 S.C.C. 41.

22. The provision of section 147 of the Act of 1988, amended by the

Motor Vehicles (Amendment) Act, 1994, includes only the owner of

goods or his authorized representative carried in the vehicle, be-

sides a third party to make liable the Insurer to indemnify the in-

sured.

23. Since the evidence on record shows that the deceased travelled be-