Andhra Pradesh High Court - Amravati
Bajaj Allianz General Insurance ... vs B. Yella Subbaiah And Another on 2 February, 2024
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
M.A.C.M.A. No.1056 OF 2016
JUDGMENT:
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Challenge in this M.A.C.M.A. is to the award, dated
08.07.2011 in M.V.O.P.1075 of 2007, on the file of IV-Additional
District Judge-cum-Motor Accidents Claims Tribunal, Kurnool,
("Tribunal" for short) where under, the Tribunal in a motor
vehicle accidents claim, as against the original claim of
Rs.1,00,000/- for the injuries sustained by the claimant, granted
compensation of Rs.47,000/- payable by the respondent Nos.1
and 2.
2. The parties to this M.A.C.M.A will hereinafter be referred
to as described before the Tribunal for the sake of convenience.
3. The case of the claimant in the M.V.O.P.No.1075 of 2007
according to the petition averments, in brief, is that:
(i) The claimant is aged about 24 years. He was hale
and healthy at the time of the accident. He was working as a
Hamali on the tractor and trailer bearing No.AP-21-V-2907 and
AP-21-V-2908 (hereinafter will be referred to as "offending
vehicle"). On 21.03.2006 in the afternoon, the petitioner along
with few hamalies were proceeding in the offending vehicle as
its hamalies from Orvakal village to Veldurthy for uploading the
stones. The driver of the tractor and trailer i.e., the offending
vehicle drove the same with high speed in a rash and negligent
manner. At 4.00 pm, on Veldurthy-Ramallakota R&B road near
Brahmagundam village, he lost control over the tractor and
trailer as a result trailer turned turtle as such all the hamalies
including the petitioner fell down along with trailer as a result
they received injuries and one of the hamalies died on the spot.
The accident occurred was due to rash and negligent act of the
driver of the said tractor and trailer. The 1st respondent being
the employer of the driver of the offending vehicle and the 2nd
respondent being the insurer are responsible to pay the
compensation. Though, the petitioner is entitled to claim an
amount of Rs.1,40,000/-, he confined his claim only to a sum of
Rs.1,00,000/-. Hence, the claim.
4. The 1st respondent (the owner of the tractor) filed his
counter contending in substance that the 1st respondent validly
insured the vehicle with 2nd respondent vide policy bearing
No.OG-06-1801-5001-00000226 which is valid from 04.05.2005
to 03.05.2006. The road accident was occurred on 21.03.2006
during the tenure of the policy. If at all the petitioner is entitled
for any compensation, it should be against the 2nd respondent
alone. The amount claimed by the petitioner is excessive and
exorbitant. Hence, the petition is to be dismissed.
5. The 2nd respondent/insurance company got filed a counter
resisting the claim of the petitioner and the brief contention of
the 2nd respondent is that the tractor and trailer bearing No.
AP-21-V-2907 and AP-21-V-2908 which involved in the accident
is a goods carriage vehicle and it is meant for the carriage of
goods only. At the time of accident, it was carrying unauthorized
passengers. The seating capacity of the vehicle is only for driver.
At the time of accident, the vehicle was carrying more than one
person. At the time of accident, the vehicle was used for the
purpose of carrying stones and 2nd respondent issued farmers
package policy to the said crime vehicle which is meant for
usage of agricultural purpose. However, contrary to the policy,
the 1st respondent used the vehicle for commercial purpose and
the coolies are not supposed to travel on the goods in the
vehicle, as there is no space for travelling coolies in the vehicle.
On account of breach of the provisions of the M.V. Act, the 2nd
respondent is not liable to pay any compensation. The driver of
the tractor and trailer did not possess any valid and effective
driving license to drive the offending vehicle. Hence, the petition
is liable to be dismissed.
6. On the basis of the above pleadings, the Tribunal settled
the following issues for trial:
(1) Whether the petitioner sustained injuries in a motor
vehicle accident which was occurred on 21.03.2006 at
about 4.00 pm on account of rash and negligent driving of
the driver of the tractor and trailer bearing No.
AP-21-V-2907 and AP-21-V-2908, belongs to the 1st
respondent and insured with the 2nd respondent?
(2) Whether the petitioner is entitled to claim
compensation, and if so to what amount and from which of
the respondents?
(3) To what relief?
7. During the course of trial before the Tribunal, on behalf of
the claimant, he examined himself as PW1 and got marked
Exs.A1 to A4. On behalf of respondents, RW1 and RW2 were
examined and got marked Exhibits B1 to B5.
8. The Tribunal on hearing both sides and on considering the
oral as well as documentary evidence, granted a sum of
Rs.47,000/- towards compensation with proportionate costs and
interest at 9% P.A. from the date of the petition till the date of
realization payable by the respondent Nos.1 and 2 jointly and
severally and further with a direction to the 2nd respondent to
pay the compensation within a period of 30 days and on such
deposit, that the claimant is entitled to withdraw the entire
amount.
9. Felt aggrieved of the same, the unsuccessful 2nd
respondent filed the present M.A.C.M.A.
10. Now, in deciding the M.A.C.M.A., the points that arise for
determination are as follows:
(1) Whether the accident occurred was due to rash and
negligent driving of the driver of tractor cum trailer
bearing No. AP-21-V-2907 and AP-21-V-2908 and whether
the petitioner received injuries in the said accident?
(2) Whether the petitioner is entitled to claim
compensation and if so, from which of the respondents?
(3) Whether the award, dated 08.07.2011, is sustainable
under law and facts and that there are any grounds to
interfere with the same?
Point Nos.1 to 3:
11. P.W.1 before the Tribunal was no other than the petitioner
who put forth the facts in tune with the pleadings of his claim
petition. Through his examination Exs.A1 to A4 were marked.
Ex.A1 was the C.C. of FIR in Cr.No.28 of 2006 of Veldurthy
Police Station. Ex.A2 was the C.C. of Wound Certificate. Ex.A3
was the C.C. of M.V.I report. Ex.A4 was the C.C. of Charge
Sheet.
12. The representative of the 2nd respondent examined himself
as RW1 putting forth the facts in tune with the written
statement and through his examination Exs.B1 and B2 were
marked. Further, RW2 was examined, who was a Senior
Assistant in R.T.O. Office and through his examination Exs.B3 to
B5 were marked. Ex.B1 was the policy copy, Ex.B2 was the
office copy of the notice issued to the respondent No.1 along
with Postal receipt and acknowledgement, Ex.B3 was the
Authorization letter, Ex.B4 was the Form No.24B Register of
Motor Vehicle (Tractor) and Ex.B5 was the Form No.24 (Trailer).
13. T.V.Sridevi, learned counsel for the appellant, would
contend that the main objection of the appellant is that the
injured i.e., the claimant was no other than an unauthorized
passenger and he claimed that he was a hamali. She would
contend that the policy under Ex.B1 did not cover any
unauthorized passengers and further it was only a farmer's
package policy. There is no dispute that the seating capacity of
the tractor is only one that is meant for driver. The petitioner
claimed that he travelled on the top of stones in the trailer.
Apart from this, the tractor cum trailer was supposed to be used
only for agricultural operations in terms of Ex.B1 policy and
contrary to that the vehicle was used for commercial purpose
i.e., transportation of stones in the trailer. So, there was
violation of policy on two counts. One is that, no premium was
paid for allowing any person to travel in the trailer or in the
tractor, as it was only meant for the driver. Second violation was
that the vehicle was not supposed to be used for any
commercial purposes such as transportation of stones. When all
these contentions were raised, the Tribunal did not consider it
properly. However, in the set of circumstances, pay and
recovery may be ordered.
14. Learned counsel for the appellant argued on 24.01.2024.
As none represented for the respondents the matter is listed
today for hearing the arguments of the contesting respondents.
One counsel, purporting to be the counsel for the 2nd respondent
in the morning time sought adjournment and this Court declined
to grant the same. Later, the matter is taken up in the first
revised call and the second revised call and even after
completion of weekly list work and even when the Court
resumed at 2.15 pm., none represented. Hence the matter is
being disposed of on merits.
15. Firstly, this Court would like to deal with, as to whether
the accident occurred was on account of rash and negligent act
of the driver of the tractor cum trailer. PW1 was no other than
the injured who claimed to have travelled in the trailer. During
chief examination, he put forth the facts in tune with the
pleadings. During the course of cross examination, he deposed
that he gave a complaint to the police on the same day. He
denied that he did not receive any injuries and obtained a false
wound certificate. The very suggestion put forth before PW1 on
behalf of the 2nd respondent is nothing but baseless.
16. A perusal of Ex.A2-certified copy of wound certificate goes
to reveal that the petitioner received the fractures. There was no
merit on the part of the 2nd respondent to put forth the
contention that the petitioner did not receive any injuries. Apart
from this, there is no dispute that pertaining to the accident in
question, the police registered the FIR in Cr.No.28 of 2006 of
Veldurthy Police Station and after due investigation filed a
charge sheet in C.C.112 of 2006 on the file of Judicial I Class
Magistrate, Dhone against the person by name Boya Sekhar that
he driven the tractor cum trailer in a rash and negligent manner
and caused death of one person and also caused injuries to the
present petitioner. For obvious reasons, the 1st respondent-
owner of the tractor did not choose to enter into the witness box
to rebut the evidence. Though it is a fact that the claimant
travelled in the trailer that itself is not sufficient to say that
there was no rash and negligent act. When the driver of the
tractor cum trailer allowed a person to travel on the trailer
though it was not permissible, he ought to have taken proper
care. Hence, the evidence of PW1 remained unrebutted. There
was nothing in the evidence of PW1 to disbelieve his testimony.
The evidence on record proves that the accident occurred was
due to rash and negligent act of the driver of the tractor-cum-
trailer. Ex.A2 reveals that the petitioner received grievous
injuries. Even the outcome of the investigation in Ex.A4 charge
sheet also reveals that the petitioner sustained grievous injuries.
Hence, the petitioner was able to prove before the Tribunal that
he received injuries, which are grievous in nature, on account of
the rash and negligent act of the driver of the tractor-cum-
trailer.
17. There is no dispute that the 1st respondent was the owner
of the vehicle. The vehicle in question was insured with the 2 nd
respondent under Ex.B1 policy. The contention of the 2 nd
respondent is that there was violation of policy under two
counts. One is that, Ex.B1 did not allow any person to travel in
the tractor-cum-trailer except the driver. Another violation is
that, Ex.B1 policy was meant for farmer's package policy, as
such, the vehicle should not have been used for any commercial
purpose. RW1, the representative of the 2nd respondent,
entered into the witness box and deposed the same. The
claimant got cross examined RW1. He did not challenge the
terms and conditions in Ex.B1. RW1 denied that the policy
covers the risk of the labour and that there was no breach of
any terms of policy.
18. As seen from Ex.B1, it is pertaining to the offending
vehicle and the policy runs as farmer's package. Though there is
no dispute by virtue of the evidence let in that the trailer can
also be used for commercial operations, but the fact remained is
that the 1st respondent did not obtain any policy, so as to cover
the commercial operations. Ex.B1 was confined to only farmer's
package. So, the very usage of the trailer for transportation of
stones is nothing but commercial, which is contra to the
conditions in Ex.B1. Merely because the trailer can be used for
commercial operations, the 1st respondent has no power to use
it for commercial operation, when Ex.B1 did not contemplate the
same. So, if the 1st respondent allowed the trailer for
commercial operations, it will be at his own risk. Apart from this,
there is no dispute that seating capacity of the tractor which was
pulling the trailer at the time of accident was only one which is
meant for driver. So, the claim of the claimant is that he
travelled in the vehicle as a hamali. The court has to consider as
to whether the act of the 1st respondent in allowing the
petitioner to travel in the vehicle, though Ex.B1 did not permit
the same is tenable or not. If Ex.B1 is taken into consideration
carefully, absolutely, the claimant should not have travelled in
the vehicle.
19. Admittedly, the evidence on record reveals that there was
violation of policy conditions on two counts, one was that the 1 st
respondent did not pay any premium for travelling by any
coolies in the trailer. In fact, trailer will not have any seats.
Seating capacity would be only for the driver of the tractor
which was only one. Second violation was that contrary to Ex.B1
conditions, vehicle was put for commercial use.
20. Learned counsel for the appellant would rely upon the
judgment of Hon'ble Supreme Court in Shivraj Vs. Rajendra
and another1 and contended that the Court has power to order
pay and recovery. This Court has gone through the same. The
High Court concluded that the insurance company cannot be
made liable to compensate the owner of the trailer. Appeal filed
by the insurance company was allowed by the High Court.
Appellant assailed the judgment of the High Court before the
Hon'ble Supreme Court. The Hon'ble Supreme Court observed
that the appellant travelled in the tractor as a passenger even
though the tractor can accommodate only one person namely
the driver. While holding so, the Hon'ble Supreme Court
observed that the High Court ought to have directed the
insurance company to pay the compensation amount to the
claimant with a liberty to recover the same from the tractor
owner, in view of the consistent view taken by the Hon'ble
Supreme Court in several decisions. While holding so, the
Hon'ble Supreme Court partly allowed the appeal to the extent
of directing the insurance company to pay the compensation
AIR 2018 SC4252
amount determined by the Tribunal which was affirmed by the
High Court in the first place and to recover the same from the
owner of the offending vehicle. The facts in the aforesaid case
are fully applicable to the present case on hand.
21. Now, coming to the quantum of compensation, though the
petitioner claimed a sum of Rs.1,00,000/-, the Tribunal took into
consideration the six injuries sustained by the petitioner. Out of
six injuries received by the petitioner, injury Nos.4 and 5 are
grievous and they are nothing but fractures and other injuries
are simple in nature. The Tribunal with due regard of the nature
of the injuries according to Ex.A2 and A3, awarded a sum of
Rs.12,000/- towards simple injuries and Rs.30,000/- towards
fracture injuries totally Rs.42,000/-.The Tribunal awarded
Rs.3,000/- towards pain and suffering. The Tribunal declined to
grant any medical expenditure because the petitioner was given
treatment in a Government Hospital. Tribunal awarded a sum of
Rs.2,000/- for the loss of earnings during the period of
hospitalization. Thus, the Tribunal totally awarded a sum of
Rs.47,000/- which is reasonable in the set of circumstances.
22. Insofar as the contention of the 2nd respondent that there
was violation of policy conditions is concerned, in the considered
view of this Court, the Tribunal did not appreciate the
contentions in proper perspective. In the light of the findings
made by this Court as above, the petitioner is entitled to
compensation from the 1st respondent but a direction is to be
given to the 2nd respondent to pay the compensation to the
petitioner and to recover the same from the 1st respondent.
23. In the result, the M.A.C.M.A is partly allowed only to the
extent of modification of the award of the learned IV-Additional
District Judge-cum-Motor Accidents Claims Tribunal, Kurnool
dated 08.06.2011, by directing the 2nd
respondent/appellant/insurer to pay the compensation to the
petitioner i.e., a sum of Rs. 47,000/- with interest as awarded
by the Tribunal and to recover the same from the 1st
respondent-owner of the offending vehicle. Under the
circumstances no order as to costs.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt.02.02.2024.
MH
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
Date: 02.02.2024
MH
