Andhra Pradesh High Court - Amravati

United India Insurance Company ... vs Rasheeda And 3 Others on 5 May, 2023

            HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                      M.A.C.M.A No.294 of 2012
JUDGMENT:

1. Aggrieved by the Judgment dated 06.02.2007 in M.V.O.P.No.95 of

2005 passed by the Chairman, Motor Accident Claims Tribunal -

Cum - Additional District Judge, Hindupur (for short 'the

Tribunal'), the 2nd respondent/Insurance Company in M.V.O.P

preferred this appeal questioning the correctness of the Tribunal's

Award.

2. For the sake of brevity, the parties are referred to as per their array

before the Tribunal.

3. The claimants filed a claim under sections 140 and 166 of the

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

Rs.8,00,000/- on account of the death of Shaik Mohammad Rafiq

(hereinafter be referred to as 'deceased') in a motor vehicle accident

that occurred on 18.03.2005.

4. The claimants' case is that on 18.03.2005 at about 01.00 PM, the

deceased and Pamapalli Yusuf loaded the silk yarn bundles in the

lorry bearing No.AP26-U-4698 (hereinafter be referred to as

'offending vehicle') at Hindupur to go to Proddatur to sell silk.

While the deceased was travelling in the offending vehicle as the

owner of the silk bundles and when the offending vehicle reached

Madimanugutta near Velugu Office, Kadiri, at about 11.45 PM, the

offending vehicle's driver drove the same in a rash and negligent

manner and lost control over the offending vehicle, resulting which

the offending vehicle climbed a stone and fell to the side.

Consequently, the deceased fell from the vehicle. He sustained

severe injuries to his head and succumbed to the injuries on the

spot. During the deceased's lifetime, he used to earn Rs.15,000/-

per month from his silk yarn business. The 1st respondent, the

owner, and the 2nd respondent, the Insurer of the offending vehicle,

are jointly and severally liable to pay compensation.

5. Respondent No.1 remained exparte.

6. Respondent No.2 filed a written statement denying the material

allegations in the petition and contended that the accident did not

occur; the offending vehicle was not insured with the 2nd

respondent. The offending vehicle's driver was not holding a valid

driving license at the time of the accident. The offending vehicle's

driver was neither rash nor negligent in driving the lorry. The

offending vehicle has no valid permit, fitness certificate, and R.C.

The deceased was an authorized passenger in the offending vehicle.

He was not carrying any goods with him. The claimants are not the

legal heirs of the deceased, and they are not the dependents of the

deceased. The age, occupation and income of the deceased are not

correct. The compensation claimed by the claimants is excessive.

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

Before the Tribunal, on behalf of claimants, PWs.1 and 2 got

examined, marked Exs.A1 to A6. On behalf of respondent No.2,

RW.1 got examined, marked Exs.B1 and B2.

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

deceased died in the accident. It occurred due to the rash and

negligent driving of the offending vehicle's driver. The Tribunal held

that claimants are entitled to compensation of Rs.2,62,800/- with

interest at 6% p.a., from the date of petition till the date of

realization against the respondents.

9. I have heard the arguments of the learned counsel for both parties

and perused the record.

10. Learned counsel for the appellant contends that the Tribunal failed

to consider the appellant's defence that there is a violation of policy

condition, as the injured was travelling as an unauthorized

passenger. The Tribunal's order is contrary to the Apex Court's

Judgments, which stipulate that when there is a violation of policy

condition that the insurance company cannot be made liable. The

Tribunal erred in not considering the fact that no premium was

paid to cover the risk of the owner of the goods also.

11. Controverting the submissions, the learned counsel for the

respondents supported the findings and observations of the

Tribunal.

12. Now the point for determination is:

(i) Whether the compensation awarded by the Tribunal is just and reasonable, or it requires modification?

(ii)Whether the Tribunal erred in fastening the liability on the insurance company to pay the compensation?

POINT NO.I:

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

Tribunal's finding that the accident occurred due to rash and neg-

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

The Tribunal's finding that the deceased's death 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 insur-

ance company despite the filing of the appeal. It is not in dispute

that the Ex.B1 policy was in force at the time of the accident.

14. The insurance company has disputed the quantum of compensa-

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

the Tribunal shows that the Tribunal has granted just and reason-

able compensation.

15. As the record shows, the deceased was doing the silk yarn busi-

ness. The Tribunal has assessed the deceased's income at Rs.60/-

per day. His annual income works out to Rs.21,600/-. Taking into

consideration the strength of the family members of the deceased,

the Tribunal rightly deducted the 1/3rd income towards the per-

sonal and living expenses of the deceased. As the deceased was

aged 24 years at the time of the accident, the Tribunal applied the

multiplier '17' and assessed the amount of Rs.2,44,800/- on the

head of loss of dependency. The Tribunal fixed the total compensa-

tion amount of Rs.2,62,800/- under conventional heads. The

quantum of compensation awarded by the Tribunal is not chal-

lenged by the appellant by filing cross objection or appeal. After

careful analysis of the evidence on record, by any stretch of the

imagination, it cannot be concluded that the compensation

awarded by the Tribunal is excessive. As such, the contention

raised by the Insurance company regarding the awarding of com-

pensation is unsustainable. Accordingly, this point is answered.

POINT NO.II:

16. The prime contention of the claimants is that the deceased tra-

velled in the vehicle as an owner of the goods but not a gratuitous

passenger. In this regard, PW.2 testified that he and the deceased

were going to Proddatur from Hindupur in a lorry bearing No.AP26

U 4698 with resham yarn bundles. Ex.A.1-F.I.R was registered

based on the statement of PW.2. In Ex.A.1, there is a specific recit-

al in which the deceased was taking silk yarn bundles on the load

of mud in the lorry from Hindupur. Ex.A.2-copy of the Inquest re-

port also shows that the deceased was going in the offending lorry

with bundles of Resham yarn on the load of mud in the lorry.

Based on the evidence, the Tribunal has concluded that the de-

ceased was going with silk yarn bundles in the offending vehicle as

the owner of the goods. The respondent got examined RW.1-

S.Sriram Naik, Administrative Officer in Appellant's insurance

company, in support of its case. His evidence shows that the lorry

is validly insured with the 2nd respondent; the 1st respondent is the

owner of the vehicle; he has not witnessed the accident; he also

admitted that as per Ex.B.2-certified copy of the charge sheet, the

deceased was travelling with silk yarn bundles; RW.2 does not

know the weight of the earth that was being carried in the offend-

ing vehicle on that day. The appellant-Insurance company has not

examined any witnesses supporting its case that the deceased tra-

velled in the offending vehicle as an unauthorized passenger. After

carefully reading the evidence on record, this Court views that the

Tribunal has concluded, based on the oral and documentary evi-

dence on record that the deceased was travelling in the offending

vehicle with his goods as an owner of the goods.

17. In the case of Ramesh Kumar Vs. National Insurance Company

Limited 1 , the Apex Court held that "if a passenger is travelling

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

2001 ACJ 1565 (S.C.)

a gratuitous passenger". In the case of Sanjeev Guptha and oth-

ers Vs. Ram Pal and others2, 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".

18. On the other hand, the policy issued under section 147 of the Mo-

tor Vehicles Act is statutory and also called an Act policy. The In-

surer's liability under this policy is restricted to indemnify the in-

sured regarding 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.

19. 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. 3 . The Three Judges of

2001 ACJ 2397

(2003) 2 SCC 223

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 Sec- tion 95(1) of the Motor Vehicles Act, 1939, are identical to Section 147(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a scrutiny of the provisions would make it clear that before the amendment of 1994, the Insurer didn't need to in- sure against the owner of the goods or his authorized representative being carried in a goods vehicle. On an erroneous impression, this Court concluded that the Insurer would be liable to pay compensa- tion for the death or bodily injury caused to either the owner of the goods or his authorized representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles Amend- ment Act of 1994 is examined, particularly Section 46, by which the expression "injury to any person" in the original Act stood subs- tituted 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 before the aforesaid Amendment Act of 1994, even if the widest interpretation is given to the expres- sion "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 ve- hicle. The objects and reasons of clause 46 also state that it seeks to amend Section 147 to include the owner of the goods or his au- thorized representative carried in the vehicle for the purposes of lia- bility under the insurance policy. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarifi- cation 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 rea- sons 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 per- son" 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 Section 147 and make it com- pulsory 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 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 Tribunal, as well as that of the High Court, accor- dingly are set aside, and these appeals are allowed.

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

upon in Oriental Insurance Company Limited Vs. Devireddy

Konda Reddy4, National Insurance Company Limited Vs. Chol-

leti Bharatamma 5 as well as in the case of National Insurance

Company Limited Vs. Saju P. Paul and another 6.

21. 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.

22. Since the evidence on record shows that the deceased travelled on

the load of the earth by putting resham bags to go to Proddatur,