Kuchipudi Lakshmana Rao vs Jampana Dhanalakshmi 4 Others
2023 Latest Caselaw 616 AP

              HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                         M.A.C.M.A. No.698 of 2012
JUDGMENT:

1. Aggrieved by the Judgment dated 29.07.2011 in MVOP.No.346 of 2010 passed

by the Chairman, Motor Accident Claims Tribunal - Cum - XI Additional

District and Sessions Judge, Gudivada (for short 'the Tribunal'), the appellant /

1st respondent filed this appeal questioning the award passed by the Tribunal.

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 for compensation of Rs.4,00,000/- for

causing the death of Jampana Nancharaiah (hereinafter referred to as

'deceased') in a motor vehicle accident.

4. It is not in dispute that the 1st petitioner is the wife, and petitioners 2 to

4 are the children of the deceased. The claimant's case is that on

11.05.2007, the deceased along with one Kodeboyina Panduranga Rao,

and others purchased Buffaloes and goats and the same were shifted to

one lorry cabin, bearing No.AIW5757 (hereinafter referred to as

'offending vehicle'). They sat in the said lorry cabin. When the offending

vehicle reached Naidupeta on NH5 road, its driver drove the same rashly

and negligently and hit the back side of one lorry. The deceased and four

other persons fell down from the cabin onto the road and received

multiple injuries. The deceased was shifted to Manipal Hospital for

better treatment. While undergoing treatment, he died at about 08.45

AM on 12.05.2007. A case was registered in Cr. No.95 of 2007 for the

offence under sections 304-A and 337 IPC.

5. The 1st respondent, the owner cum driver of the offending vehicle, filed

counter, contending that the petitioners must prove that the deceased

and others loaded the lorry with buffaloes and goats. The 1st respondent

had a valid license at the time of the accident. He drove it at a minimum

speed in the right direction by following the rules.

6. The 2nd respondent/insurance company filed its written statement

contending that the deceased was an unauthorized passenger travelling

in the offending vehicle. The policy did not cover to use for the carriage

of passengers. The risk is not covered under section 149(2) of the Motor

Vehicles Act, 1988.

7. 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 A4. On behalf of the respondents, RWs.1 and 2 got

examined, marked Ex.B1.

8. After considering 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 death of the deceased occurred due to injuries

sustained in the accident. The Tribunal held that petitioners are entitled

to compensation of Rs.2,95,000/- with interest @6% p.a from the date of

the petition.

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

perused the records.

10. The learned counsel appearing for appellant/1st respondent contended

that the Tribunal ought to have made that as per the amended Act, the

insurance company is liable to pay the compensation in the light of the

fact that the deceased is the owner of the goods, i.e., buffaloes and goats

travelling in the offending vehicle at the time of the accident. The

insurance company is liable to pay the compensation irrespective of the

payment of the premium covering the risk. The Tribunal's finding that

the deceased's age was 50 years is not based on legally acceptable

evidence. The multiplier is also not correct. Hence the impugned order is

liable to be dismissed.

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

findings and observation of the learned Tribunal.

12. Now the points for determination are

1. Whether the Tribunal is justified in exonerating the insurance

company from liability to pay compensation?

2. Whether the quantum of compensation fixed by the Tribunal is

just and reasonable or requires modification.

POINT No.1 :

13. 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 driver of the offending vehicle 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 chal-

lenged by the insurance company by filing an appeal or cross-objections.

14. 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. It

is the evidence of PW.1 that they used to purchase and sell buffaloes and

goats, and on 11.05.2007, the deceased, along with others, purchased

buffaloes and goats and shifted to the offending vehicle for hire and sat

in the lorry cabin travelling with buffaloes and the lorry when reached

Naidupeta, the accident occurred. Ex.A1 - F.I.R. supports the said case

of the petitioners. As per Ex.A1 the accident occurred on 12.05.2007 at

04.00 AM, and the report was lodged on the same day at 10.15 AM. The

distance between the police station and the place of the accident is 12

Kilometers. Ex.A1, F.I.R. clearly mentions that the accident occurred

while they proceeded in the offending vehicle along with their cattle. The

said case of the petitioners is supported by PW.2 -K. Panduranga Rao,

who also deposed that they seated in the lorry cabin along with buffaloes

and goats. No evidence is let in on behalf of the respondents to disprove

their version that they were travelling in the offending vehicle as the

owner of the goods. The Tribunal has not negatived the said case of the

petitioners.

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

tive of the owner of goods in the offending vehicle. The Tribunal found

that the insurance company is not liable to pay the compensation as the

deceased travelled in a goods vehicle.

16. The terms of the policy show that a premium amount of Rs.50/- was col-

lected for W.C. Employee 2. 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. The material on record shows that

the deceased travelled in the goods vehicle as an owner of the goods.

17. 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

(2003) 2 SCC 223

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 owner of the goods or his au- thorized representative carried in the vehicle for the purposes or liability under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of amplifi- cation 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 earlier, it is difficult for us to construe that the expression "including the owner of the goods or his authorized representative carried in the vehicle" which was added to the pre-existing expression "injury to any person" is either clarificatory or amplification of the pre- existing statute. On the other hand, it clearly demonstrates that the legislature wanted to bring within the sweep of Sec- tion 147 and make it compulsory 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 accident and the owner of the goods or his representative either dies or suffers bodily in- jury. The Judgment of this Court in the Satpal Case, there- fore, must be held to have not been correctly decided and the impugned Judgment of the Tribunal, as well as that of the High Court, accordingly are set aside, and these appeals are allowed. It is held that the Insurer will not be liable for pay- ing compensation to the owner 8 FA-1388-16 of the goods or his authorized representative on being carried in a goods ve- hicle when that vehicle meets with an accident and the own- er of the goods or his representative dies or suffers any bodi- ly injury."

18. 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.

19. 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.

20. In view of the aforesaid discussion, this Court views that the Tri-

bunal committed an error in not fastening the liability on the 2nd

respondent to pay the compensation; it is not the case of the in-

surance company that there is no seating provision in the lorry ca-

bin. Since the deceased travelled in the lorry's cabin as the owner

of the goods, this Court views that the Tribunal erred in not fasten-

ing the liability on the insurance company.

Point No.2 :

21. As seen from the grounds of appeal, it is the objection taken that

the age of the deceased is not based on any legally acceptable evi-

dence, and the multiplier applied is also incorrect. The claimants

have not placed documentary evidence showing the deceased's cor-

rect age. In absence of such evidence, the Tribunal rightly relied on

Ex.A2 - inquest report and Ex.A3 - Postmortem report, to fix the

deceased's age at 50. In view of the same, this Court finds that

there is no tenability in the contention raised by respondents. The

Tribunal is supposed to apply multiplier '13' but applied '11'. After

considering the compensation awarded under various heads, this

Court views that at any stretch of the imagination, it cannot be

held that the compensation fixed by the Tribunal is unjust and un-

reasonable. Since the claimants have not preferred any appeal in

this regard, I don't find any reason to interfere with the quantum of

compensation awarded by the Tribunal.

22. As a result, this appeal is partly allowed without costs by modifying

the award passed by the Tribunal by holding that the Insurance

Company is liable to pay compensation and is directed to deposit

the compensation awarded by the Tribunal within two months

from the date of Judgment. The petitioners are entitled to compen-

sation as apportioned by the Tribunal and permitted to withdraw

per its terms.

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

__________________________________ JUSTICE T MALLIKARJUNA RAO Date :06.02.2023.

KGM