Andhra Pradesh High Court - Amravati

The National Insurance Co. Ltd., vs Chikkireddy Veera Reddy And ... on 30 October, 2023

THE HON'BLE SRI JUSTICE V. GOPALA KRISHNA RAO

               M.A.C.M.A. No. 674 of 2023

JUDGMENT:-

1)   Aggrieved by the impugned Order and Decree, dated

06.02.2012, passed in O.P. No. 162 of 2009 on the file of

the IV Additional Motor Accidents Claims Tribunal [F.T.C.],

Nellore, whereby, a claim of Rs.50,000/- was awarded

towards compensation to the claimant by the Tribunal, this

instant appeal is preferred by the 2nd respondent/the

National Insurance Company Limited questioning the legal

validity of the Order of the Tribunal.


2)   For the sake of convenience, both the parties in the

Appeal will be referred to as they are arrayed in the claim

application.


3)   Sri. Chikireddy Veera Reddy [the 'claim petitioner']

filed the petition under Sections 166 and 167 of the Motor

Vehicles Act, 1988, [the 'M.V. Act'] against the respondents

claiming compensation of Rs.2,00,000/- for the injuries

sustained by him in a motor vehicle accident that occurred

on 21.04.2005.
                                   2



4)    Facts

germane to dispose of the Appeal may briefly be

stated as follows: -

i. On 21.04.2005 at 6.00 A.M., while the petitioner was

going to his duty and at Chennakeswavula Swamy

Temple he boarded the offending vehicle lorry bearing

registration No.AP09 U 3556 along with his tools to

go to Kavali for attending to his duties. At that time,

the driver of the offending lorry showed his

willingness to transport the tools and implements of

the petitioner on payment of luggage charges and the

petitioner paid Rs.30/- towards luggage charges and

after some distance the driver of the offending vehicle

lorry drove the same in a rash and negligent manner

and lost control over the lorry and turned turtle on

the road side margin resulting the petitioner receiving

grievous injuries. A case in Crime No. 39 of 2005 was

registered against the driver of the offending vehicle

lorry under the relevant sections of the Indian Penal

Code, 1860 ['I.P.C.']. The 1st respondent is the owner

and the 2nd respondent is insurer of the offending

vehicle lorry. Hence, both the respondents are jointly

and severally liable to pay compensation to the

petitioner.

5) The 1st respondents remained ex parte.

6) The 2nd respondent filed counter while denying the

claim of the claimant pleaded that the offending vehicle

lorry is a goods carriage vehicle and no passenger is

permitted to travel in the said lorry, but, however, the 1st

respondent driver in violation of the terms and conditions

of the policy allowed gratuitous passenger to travel in the

offending vehicle lorry and, therefore, the 2nd

respondent/insurance company is not liable to pay any

compensation much less the compensation claimed by the

claimant.

7) Based on the above pleadings of both the parties, the

following issues were settled for trial by the Tribunal:

1) Whether the claimant is entitled to compensation? If so, what amount?

2) Whether the accident occurred due to the rash and negligent driving of the driver of the lorry bearing No.AP09 U 3556?

3) To what relief?

8) During the course of enquiry in the claim petition, on

behalf of the petitioner, PW1 was examined and Ex.A1 to

Ex.A8 were marked. On behalf of the 2nd respondent, RW1

was examined and Ex.B.1 was marked.

9) 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, allowed the claim petition in part and awarded

an amount of Rs.50,000/- with proportionate costs and

interest at 7.5% per annum from the date of petition till the

date of deposit or realization against the respondents.

Aggrieved against the said order, the appellant/Insurance

company preferred the present Appeal.

10) Heard learned counsels for both the parties and

perused the record.

11) Now, the point for determination is:

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

12) POINT: The case of the claimant is that, he was

quite hale and healthy prior to the accident and working as

Railway Gangman on a monthly salary of Rs.8,500/-. On

21.04.2005 at 6.00 A.M., the petitioner while going to his

duty boarded the offending vehicle lorry bearing

registration No.AP09 U 3556 and upon his willingness to

transport the tools and implements of the petitioner, the

petitioner paid Rs.30/- towards luggage charges and after

some distance the driver of the offending vehicle lorry drove

the same in a rash and negligent manner and lost control

over the lorry and turned turtle on the road side margin

resulting the petitioner receiving grievous injuries.

13) The material on record clearly goes to show that the

accident in question occurred due to rash and negligent

driving of the of the offending vehicle lorry, in which the

petitioner sustained fracture and grievous injuries. The

Tribunal also arrived at the same conclusion. I do not find

any illegality in the said finding given by the Tribunal.

14) Coming to the compensation, the case of the claimant

is that, he sustained grievous injuries in the accident in

question. On considering the evidence of PW1 and on

considering Ex.A2 - wound certificate and on considering

medical bills and Ex.A8 - bunch of X-ray films, the

Tribunal awarded lump sum amount of Rs.50,000/-

towards compensation to the claimant/injured. On

considering the injuries sustained by the petitioner and

coupled with the documentary evidence on record, the

compensation amount of Rs.50,000/- awarded by the

Tribunal is just and fair compensation. I do not find any

illegality in the said finding given by the Tribunal. Ex.B1

clearly goes to show that the offending vehicle is insured

with the 2nd respondent/insurance company and policy is

in force.

15) The learned Standing Counsel for the National

Insurance Company Limited [2nd respondent] would submit

that, as per the terms and conditions of Ex.B1 - policy, no

person shall travel as passenger in a goods carriage

vehicle. If any person will travel in a goods carriage vehicle,

he will be treated as gratuitous passenger or unauthorized

passenger. In the present case, the petitioner travelled in

the offending lorry as unauthorized passenger. As per the

evidence of RW1, who is the Senior Assistant in 2nd

respondent/insurance company and a perusal of Ex.B1 -

copy of the insurance policy filed by the insurance

company itself would goes to show that (i) an amount of

Rs.1,104/- was paid for loading on T.P. premium; and

(ii) an amount of Rs.75/- was paid towards non-fare

paid passenger. In-fact, the learned Counsel for the 2nd

respondent/insurance company fairly represented that the

policy is a comprehensive policy.

16) The legal position, in this regard, is not res nova and

the same has been well settled. The Hon'ble Apex Court in

the case of Anu Bhanvara Etc. Vs. Iffco Tokio General

Insurance Company Limited & Others1, had an occasion

Civil Appeal Nos. 6231-6232 of 2019, dated 09.08.2019.

to deal with the same issue. In that decision, the Hon'ble

Apex Court held in paragraph No. 11, as under:

"11. We have heard learned counsel for the parties and perused the record as well as the various decisions cited by learned counsel for the parties. The insurance of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case."

17) As stated supra, as per own evidence of the insurance

company, Ex. B1 - policy is a comprehensive policy and

covers the risk of third parties. Therefore, the ratio laid

down in the aforesaid decision of the Hon'ble Apex Court is

squarely applicable to the present facts of the case. In that

case also, the contention of the insurance company was

that the claimant is a gratuitous passenger traveled in the

goods vehicle. Here, in the present case also, the vehicle is

goods vehicle.

18) For the foregoing discussion, the 2nd

respondent/Insurance Company is directed to deposit the

quantum of compensation amount of Rs.50,000/- with