Andhra Pradesh High Court - Amravati
M/S National Ins Co Ltd., Chittoor Dist vs K R Nethaji, Chittoor Dist Anr on 25 June, 2024
HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
****
MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 3061 OF 2016
Between:
1. M/S NATIONAL INS CO LTD., CHITTOOR DIST, REP. BY ITS BRANCH
MANAGER, HAVING ITS OFFICE AT PVN COMPLEX,.SHESHAPEERAN
STREET, CHITTOOR TOWN AND DISTRICT.
...APPELLANT
AND
1. K R NETHAJI, S/O RAMACHANDRA NAIDU, AGE ABOUT: 37 YEARS,
DRIVER RESIDING AT D.NO. 1-51, JANGALAPALLI VILLAGE,
IRUVARAM POST, YADAMARI MANDAL, CHITTOOR DISTRICT.
2. SMT CHITTIMMA, W/O LATE RAMACHANDRA NAIDU, HINDU, AGED
ABOUT 55 YEARS, OWNER OF MARUTHI CAR BEARING NO. AP-03-
AH-0189, RESIDING AT D.NO.
1-51, JANGALAPALLI VILLAGE, IRUVARAM POST, YADAMARI
MANDAL, CHITTOOR DISTRICT
...RESPONDENT(S):
DATE OF JUDGMENT PRONOUNCED : 25.06.2024
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wishes to see
The fair copy of the judgment? Yes/No
______________________
A.V.RAVINDRA BABU, J
2
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:
3061 of 2016
% 25.06.2024
# Between:
1. M/S NATIONAL INS CO LTD., CHITTOOR DIST, REP. BY
ITS BRANCH MANAGER, HAVING ITS OFFICE AT PVN
COMPLEX,.SHESHAPEERAN STREET, CHITTOOR TOWN
AND DISTRICT.
...APPELLANT
AND
1. K R NETHAJI, S/O RAMACHANDRA NAIDU, AGE ABOUT:
37 YEARS, DRIVER RESIDING AT D.NO. 1-
51,JANGALAPALLI VILLAGE, IRUVARAM POST, YADAMARI
MANDAL, CHITTOOR DISTRICT.
2. SMT CHITTIMMA, W/O LATE RAMACHANDRA NAIDU,
HINDU, AGED ABOUT 55 YEARS, OWNER OF MARUTHI
CAR BEARING NO. AP-03-AH-0189, RESIDING AT D.NO.
1-51, JANGALAPALLI VILLAGE, IRUVARAM POST,
YADAMARI MANDAL, CHITTOOR DISTRICT
..RESPONDENTS
! Counsel for the Appellant : Sri Suribabu Puppala.
^ Counsel for the Respondents : Sri D.Seshasayana Reddy.
> Head Note:
? Cases referred:
1) 2010 (3) ALD 283
2) 2013(4) ALT 574
3) 2015 ACJ 2083
4) 2020 ACJ 627
5) 2009 ACJ 2020
6) 2018 ACJ 2825
7) 2007 ACJ 818
8)(2008) 5 SCC 736
9) 2009 ACJ 998
The Court made the following:
3
JUDGMENT:
-
Challenge in this M.A.C.M.A. is to the award, dated
09.08.2016, in M.V.O.P.No.67 of 2012, on the file of the
IX Additional District Judge - cum - Motor Accident Claims Tribunal,
Chittoor („Tribunal‟ for short), whereunder the Tribunal dealing with
claim for compensation made by the claimant for a sum of
Rs.5,00,000/-, with regard to the injuries received by him, in a motor
vehicle accident, which was occurred on 11.05.2011 at 09.35 p.m.,
awarded a sum of Rs.2,21,109/- as compensation.
2. The parties to this M.A.C.M.A. will hereinafter be referred to
as described before the learned Tribunal for the sake of
convenience.
3. The case of the claimant before the Tribunal, in brief,
according to the averments set out in the Motor Vehicle accident
claim, is that:
(i) Respondent No.1 is the owner of Maruthi Dzire car
bearing No. AP 03 AH 0189 („offending vehicle‟ for short).
Respondent No.2 is the insurer of the respondent No.1 vehicle.
Petitioner is working as the driver under the respondent No.1. He is
also doing JCB work business and earning Rs.5,000/- per month.
He is also doing civil contract works and earning Rs.1,20,825/- per
annum. He has agricultural lands and he is cultivating.
(ii) On 11.05.2011, at 09.35 p.m., on Chittoor-Tirupathi
road, the petitioner was coming in a Maruthi Dzire car bearing No.
AP 03 AH 0189, belongs to respondent No.1, as a driver from
Tirupathi to Chittoor side slowly and cautiously. When the said car
reached Kothur Village, Pakala Mandal, the petitioner lost control
over the car and dashed on the road side tamarind tree. As a result,
the petitioner sustained fracture on his right hip, right leg, fore head
and received injuries all over the body. After the accident, he was
shifted to CMC Hospital, Vellore.
(iii) Pakala Police registered a case against the petitioner in
Crime No.50 of 2011, under Section 279 I.P.C. Police laid charge
sheet against the petitioner at no fault on his part, and it is pending
before learned Judicial Magistrate of First Class, Pakala for
adjudication. He was quite hale and healthy and energetic prior to
the accident. He was working under respondent No.1 and he was
also doing agricultural works and earning Rs.1,20,640/- per annum.
Due to the accident, he sustained fracture to his right hip, right leg,
fore head and received injuries all over the body. He was inpatient
for a period of 25 days. He spent nearly 50,000/- towards his
treatment. Still he is taking treatment as outpatient at CHC, Vellore.
He required huge amounts. He cannot attend his normal duties. He
became permanently disabled. He is the driver of the respondent
No.1‟s vehicle and he received injuries while discharging his duties
under the respondent No.1 as driver. Respondent No.1 validly
insured the vehicle with respondent No.2/Insurance Company.
Hence, both the respondents are jointly and severally liable to pay
compensation of Rs.5,00,000/-. Hence, the claim.
4. (i) Respondent No.1/owner of the offending vehicle, who is
no other than the mother of the claimant remained exparte.
(ii) Respondent No.2/Insurance Company got filed written
statement contenting in substance that the petitioner is not 3rd party
to the respondent No.1., as such the petition is not maintainable.
The petitioner is no other than the son of the respondent No.1 and
he is nothing but owner of the vehicle, and the policy does not cover
the risk of the owner, as such the petition under Section 163-A of
the Motor Vehicles Act (the „M.V.Act‟ for short) is not maintainable.
The petitioner was driving the vehicle at the time of accident. On
account of his own rash and negligent act, he received injuries. He
is not entitled for any compensation. Respondent No.2 is denying
the nature of injuries received and the petitioner has to prove the
manner of accident and injuries. Petitioner and his mother i.e., the
respondent No.1, colluded with each other and created the
documents. The claim is excessive. Hence, the petition is liable to
be dismissed.
5. Basing on the above pleadings, the Tribunal settled the
following issue for trial:
(1) Whether the accident occurred was due to the rash and
negligent driving of the driver of the Maruthi Dzire car No.
AP 03 AH 0189?
(2) Whether the petitioner is entitled for compensation?
If so, from whom and to what amount?
(3) To what relief?
6. During the course of trial, before the Tribunal, on behalf of the
petitioner, PWs.1 to 3 were examined, Exs.A1 to A6 were marked.
On behalf of the respondent No.2/Insurance Company, RW.1 was
examined, Ex.B1 is marked by consent and further Exs.X1 and X2
were also marked.
7. The Tribunal on hearing both sides and on considering the
oral as well as documentary evidence, answered the issues in
favour of the petitioner and against the respondents and awarded a
sum of Rs.2,21,109/-, towards compensation.
8. Aggrieved of the said award, respondent No.2/Insurance
Company filed the present M.A.C.M.A.
9. Now, in deciding the present M.A.C.M.A., the point for
determination is:
"Whether the award, dated 09.08.2016, in M.V.O.P.No.67
of 2012, on the file of the IX Additional District Judge - cum -
Motor Accident Claims Tribunal, Chittoor, in awarding the
compensation of Rs.2,21,109/-, is sustainable under law and
facts and whether there are any grounds to interfere with the
same?"
10. Sri Suribabu Puppala, learned counsel for the appellant would
contend strenuously that petitioner himself was the driver who met
with the accident on his negligent act. The Tribunal erroneously
awarded compensation of Rs.2,21,109/-. The petitioner was not a
3rd party, he was the son of the owner of the offending vehicle.
Petitioner purchased the vehicle in the name of his mother and his
mother was only a binami. At best the owner-cum-driver is eligible
for the extent of personal accident coverage under the Insurance
Policy, as such, the award of the Tribunal needs interference. The
learned counsel further canvas a contention that the Insurance
Company placed reliance in the decisions in United Insurance Co.,
Ltd. Hyderabad Vs. M.Om Prakash and others1, and further on
Bajaj Allianz General Insurance Co., Ltd., rep. by its Branch
Manager, Hyderabad Vs. Guddam Swami Reddy and another 2,
before the Tribunal and the Tribunal misconstrued those citations
and erroneously relied upon the decision, Nallaganthula Sathiaiah
and others Vs United India Insurance Co., Ltd., and another3,
cited by the learned counsel for the claimant. He would further
contend that in respect of personal accident coverage, only premium
of Rs.25/- was paid, in respect of the driver and the petitioner was
not at all the driver and the driver of the vehicle was some other
person and the Tribunal erroneously awarded compensation, as
such M.A.C.M.A. is liable to be dismissed by setting aside the award
of the Tribunal.
11. Sri D.Seshasayana Reddy, learned counsel for the contesting
respondent/claimant would contend that the Tribunal rightly
2010 (3) ALD 283
2013(4) ALT 574
2015 ACJ 2083
negatived the contention of the appellant. Ex.B1 Insurance Policy
was covering the period of accident. The petitioner was no other
than the 3rd party, in terms of Section 163-A of the M.V.Act. In a
claim under Section 163-A of the M.V.Act, rash and negligent Act
need not be proved. However, the fact remained is that police laid
charge sheet against the claimant alleging that he drove the vehicle
in a rash and negligent manner. The Tribunal with appropriate the
reasons awarded compensation, as such, it needs no interference.
12. Firstly, this Court would like to make it clear that the claim was
laid before the Tribunal under Section 163-A of the M.V.Act.
However, the fact remained is that an issue was framed by the
Tribunal that „the accident occurred was due to the rash and
negligent driving made by the driver of the offending vehicle‟.
Though in a claim under Section 163-A of the M.V.Act, there is no
need or necessity to prove rash and negligent act, but the fact
remained is that according to Ex.A2-copy of charge sheet on which
the petitioner placed reliance, the petitioner himself was responsible
for the accident by driving the vehicle in a rash and negligent
manner. The petitioner attributes bad motive against the
investigating agency in the pleadings by contending that police
unnecessarily laid a charge sheet against him. Findings made by
the police i.e., outcome of the investigation was not challenged
before the appropriate forum. So, the fact remained is that it was on
account rash and negligent act made by the petitioner while driving
Maruthi Dzire car bearing No. AP 03 AH 0189, he received injuries.
It is to be noted that respondent No.1 is no other than the mother of
the claimant, who remained exparte. The Insurance Company
seriously disputed the fact that the petitioner was not the regular
driver of the offending vehicle. According to Insurance Company,
petitioner himself purchased the vehicle in the name of his mother
and he was acting as owner of the vehicle.
13. At this juncture, it is appropriate to look in to the legal
principles, where any person stepped into the shoes of the driver or
owner. Firstly, this Court would like extract here of Section 163-A of
the M.V.Act, on which the claim is laid.
"163-A. Special provisions as to payment of
compensation on structured formula basis:- (1)
Notwithstanding anything contained in this Act or in any
other law for the time being in force or instrument having
the force of law, the owner of the motor vehicle or the
authorized insurer shall be liable to pay in the case of
death or permanent disablement due to accident arising
out of the use of motor vehicle, compensation, as indicated
in the Second Schedule, to the legal heirs or the victim, as
the case may be.
Explanation:- For the purposes of this sub-section,
"permanent disability" shall have the same meaning and
extent as in the Workmen‟s Compensation Act, 1923 (8 of
1923).
(2) In any claim for compensation under sub-section (1),
the claimant shall not be required to plead or establish that
the death or permanent disablement in respect of which
the claim has been made was due to any wrongful act or
neglect or default of the owner of the vehicle or vehicles
concerned or of any other person.
(3) The Central Government may, keeping in view the cost
of living by notification in the Official Gazette, from time to
time amend the Second Schedule".
14. So, as per Section 163-A of the M.V.Act, the owner of the
vehicle or the authorized insurer shall be liable to pay in case of
death or permanent disability, the compensation.
15. At this juncture, this Court would like to refer here legal
position. In Ramkhiladi and others v. the United India Insurance
Company and other 4 the factual matrix was that in a motor vehicle
accident which was occurred on 02.10.2006 one Chotelal alias
Shivram died. At the time of accident, he was travelling on the
motorcycle bearing registration No.RJ 02 SA 7811. Though there
was an allegation that accident was occurred on account of rash
and negligent driving of the driver of another motorbike bearing
registration No.RJ 29 2M 9223 but the claimants therein laid a
claim under no fault liability under Section 163-A of the M.V. Act
against owner and insurer of the motorbike which was being driven
by the deceased. The Tribunal upheld the claim of the claimants and
when the matter was canvassed before the High Court, it set-aside
the Award of the Tribunal. Then the claimants canvassed the matter
before the Hon‟ble Apex Court.
16. The Hon‟ble Apex Court relied on its earlier decision in
Ningamma v. United India Insurance Company Limited5,
wherein the factual matrix was that the deceased was driving
the motorcycle which was borrowed from its real owner and
met with an accident by dashing against a bullock cart from
its behind without involving any other vehicle. Claim Petition
was filed under Section 163-A of the M.V. Act by the legal
representatives of the deceased against the real owner of the
motorcycle which was being driven by the deceased. The
Hon‟ble Apex Court while referring the factual matrix in
Ningamma (5th supra), extracted further the observations of
the Court that since the deceased has stepped into the
shoes of the owner of the vehicle, Section 163-A of the
2020 ACJ 627
2009 ACJ 2020
M.V. Act cannot apply, wherein the owner of the vehicle
himself is involved as such legal representatives of the
deceased could not have claimed the compensation under
Section 163-A of the M.V. Act. While relying upon the
decision of the Hon‟ble Apex Court in Ningamma (5th supra),
the Hon‟ble Apex Court in Ramkhiladi (4th supra) held that
in a claim under Section 163-A of the M.V. Act there is no
need to plead or establish the rash and negligence because
it is based upon the no fault liability. However, the Hon‟ble
Apex Court held that the deceased has to be a third party
to lay a claim under Section 163-A of the M.V. Act and
claimants cannot maintain a claim under Section 163-A of
the M.V. Act against the driver and insurer of the vehicle
vide registration No. RJ 02 SA 7811. The Hon‟ble Supreme
Court further held that the parties are governed by the terms
and conditions of the contract of insurance and the liability of
the Insurance company is only limited. The Hon‟ble Apex
Court at Para No.5.6 therein further held as follows:
"5.6. In view of the above and for the reasons
stated above, in the present case, as the claim
under Section 163-A of the Act was made only
against the owner and insurance company of the
vehicle which was being driven by the deceased
himself as borrower of the vehicle from the owner
of the vehicle and he would be in the shoes of
the owner. The High Court has rightly observed
and held that such a claim was not maintainable
and the claimants ought to have joined and/or
ought to have made the claim under Section 163-A
of the Act against the driver, owner and/or the
insurance company of the offending vehicle i.e. RJ
29 2M 9223 being a third party to the said vehicle."
17. Further, the Hon‟ble Apex Court at Para No.5.8 held as
follows:
"5.8. However, at the same time, even as per the
contract of insurance, in case of personal accident
the owner-driver is entitled to a sum of Rs.1 lakh.
Therefore, the deceased, as observed
hereinabove, who would be in the shoes of the
owner shall be entitled to a sum of Rs.1 lakh,
even as per the contract of insurance. However, it
is the case on behalf of the original claimants that
there is an amendment to the 2nd Schedule and a
fixed amount of Rs.5 lakh has been specified in
case of death and therefore the claimants shall be
entitled to Rs.5 lakh. The same cannot be
accepted. In the present case, the accident took
place in the year 2006 and even the judgment and
Award was passed by the learned Tribunal in the
year 2009, and the impugned judgment and Order
has been passed by the High Court in 10.05.2018
i.e., much prior to the amendment in the 2nd
schedule. In the facts and circumstances of the
present case, the claimants shall not be entitled to
the benefit of the amendment to the
2nd Schedule. At the same time, as observed
hereinabove, the claimants shall be entitled to
Rs.1 lakh as per the terms of the contract of
insurance, the driver being in the shoes of the
owner of the vehicle."
18. So, in Ramkhiladi (4th supra), the Hon‟ble Apex Court
ultimately held that the claimants shall be governed by the
terms and conditions of the contract of insurance as such
directed the Insurance Company to pay the compensation
to the extent of Rs.1,00,000/-
19. This Court has gone through the decision of the
Hon‟ble Apex Court in National Insurance Company
Limited v. Ashalata Bhowmik and others wherein the
factual matrix of that case was that one Dilip Bhowmik was
returning to his house by driving his vehicle bearing No.TR-
01-U-0530 and when he reached near the bridge of
Agartala Railway Station situated on the bye-pass under
Amtali Police Station, he met with an accident and
sustained injuries and later he was succumbed to
injuries. His legal representatives filed a claim and the
Tribunal passed the Award. An Appeal was filed before
the High Court by the Insurance Company on the ground
that the deceased himself was the owner cum driver of the
vehicle and he was not a third party. The High Court
accepted the contention of the appellant that the
deceased was not a third party but however directed the
appellant to pay compensation with raider that the said
order shall not be treated as a precedent. The aforesaid
order was challenged before the Hon‟ble Apex Court and
the Hon‟ble Apex Court at Para No.7 held as follows:
2018 ACJ 2825
"7. We have carefully considered the submissions of
the learned Counsel made at the Bar and perused
the materials placed on record. It is an admitted
position that the deceased was the owner-cum-
driver of the vehicle in question. The accident had
occurred due to the rash and negligent driving of the
vehicle by the deceased. No other vehicle was
involved in the accident. The deceased himself was
responsible for the accident. The deceased being
the owner of the offending vehicle was not a third
party within the meaning of the Act. The deceased
was the victim of his own action of rash and
negligent driving. A Claimant, in our view, cannot
maintain a claim on the basis of his own fault or
negligence and argue that even when he himself
may have caused the accident on account of his
own rash and negligent driving, he can nevertheless
make the insurance company to pay for the same.
Therefore, the respondents being the LRs of the
deceased could not have maintained the claim
petition filed under Section 166 of the Motor
Vehicles Act."
20. In the aforesaid decision, the Hon‟ble Apex Court
further referred to its similar earlier decision in Oriental
Insurance Company Limited v. Jhuma Saha and
others , wherein the factual matrix was that the owner
himself was driving the vehicle and due to his negligence
dashed a tree and he died. The Hon‟ble Apex Court
observed the findings in Jhuma Saha (4th supra) held that
2007 ACJ 818
in such circumstances a claim filed by the legal
representatives was not maintainable.
21. The Hon‟ble Apex Court in Oriental Insurance
Company Limited v. Rajni Devi and others , dealt with a
similar situation wherein the factual matrix was such that a
claim was filed by the legal representative of the deceased
under Section 163-A of the M.V. Act for death of one Janak
Raj. The deceased was riding motorcycle along with one
Sukhdev Raj. Who was actually on the driver‟s seat is not
known. The motorcycle was said to have gone out of control
and resulted in the accident. Therefore, the legal
representatives laid a claim. When the matter was
canvassed before the Apex Court, the Hon‟ble Apex Court
categorically held that liability under Section 163-A of the
M.V. Act cannot be both, a claimant as also a recipient. Legal
heirs of Janak Raj could not have maintained a claim in
terms of Section 163-A of the M.V. Act. For the said
purpose only the terms of contract of insurance could be
taken recourse to. Further, The Hon‟ble Apex Court in
New India Assurance Company Limited v. Sadanand
Mukhi and others dealt as to whether son of the insured
driving motorbike can be taken as a third party. The
factual matrix was such that son of the insured was driving
the motor vehicle, met with an accident and died. The legal
heirs of the deceased laid a claim before the Tribunal. The
Tribunal upheld the contentions of the claimants. Later,
when the insurance company filed an Appeal before the
High Court, it was not answered properly. Therefore, the
(2008) 5 SCC 736
2009 ACJ 998
Insurance Company canvassed the matter before the
Hon'ble Apex Court. The Hon'ble Apex Court upheld the
contentions of the Insurance Company and allowed the
Appeal.
22. Coming to the case on hand, as evident from the award of the
Tribunal, learned Insurance Company placed reliance on two
decisions i.e., United Insurance Co., Ltd. Hyderabad Vs. M.Om
Prakash and others (1st supra), and further on Bajaj Allianz
General Insurance Co., Ltd., rep. by its Branch Manager,
Hyderabad Vs. Guddam Swami Reddy and another (2nd supra).
23. In United Insurance Co., Ltd. Hyderabad Vs. M.Om
Prakash and others, High Court of Andhra Pradesh at Hyderabad,
held that claim petitions are not maintainable under Section 163-A
of the M.V.Act, which is only relating to 3rd parties and the injured
there in were cannot be considered as 3rd parties. It was also a case
where the deceased was driving the vehicle.
24. As seen from the decision in Bajaj Allianz General
Insurance Co., Ltd., rep. by its Branch Manager, Hyderabad Vs.
Guddam Swami Reddy and another, it was a case where an injury
claim was laid by the petitioner who was driving the car bearing
No.AP 15 MN 6463, who dashed a tree on the road. He received
severe injuries. He laid claim under Section 163-A of the M.V.Act.
The Tribunal awarded compensation. The Insurance Company filed
M.A.C.M.A. before the High Court of Andhra Pradesh at Hyderabad.
High Court of Andhra Pradesh examined the legal principles in this
regard and held as follows:
"8. In view of the legal position discussed above, the
claim made under Section 163-A of the Act is founded on
the fault liability principle. The law only enables the
claimant to seek relief under Section 163-A of the Act on
structured formula basis. To fasten the liability on the
insurance company, the claimant is required to establish
either that he is a third party or that his risk is covered
under the terms and conditions of the policy. The claimant
in the instant case is admittedly not a third party. He did
not adduce any evidence showing that the accident
occurred in the course of his employment with the second
respondent-owner of the vehicle or that under the terms
and conditions of the policy under which the car involved in
the accident was insured with the appellant- insurance
company his risk is covered. The Tribunal had recorded a
categorical finding that the accident was on account of the
fault of the claimant himself who was driving the vehicle at
material time. Therefore, under law, he is not entitled to
maintain a claim under the provisions of Section 163-A of
the Motor Vehicles Act which founded on fault liability
principle. Therefore, the Tribunal in my considered view
went wrong in holding that the claim under Section 163-A
of the Act is maintainable before it and that the insurance
company is liable to pay compensation to the claimant.
The said finding is liable to be set aside in the present
appeal."
25. Learned counsel for the petitioner before the Tribunal placed
reliance in Nallaganthula Sathaiah and others (3rd supra). In my
considered view, the Tribunal wrongly applied the aforesaid
decision. In view of the law laid down by the Hon'ble Supreme Court
as above and also the High Court of Andhra Pradesh in United
Insurance Co., Ltd. Hyderabad Vs. M.Om Prakash and others,
and further on Bajaj Allianz General Insurance Co., Ltd., rep. by
its Branch Manager, Hyderabad Vs. Guddam Swami Reddy and
another, the petitioner/injured who was driving the offending vehicle
and received injuries by his rash and negligent act cannot maintain
a claim under Section 163-A of the M.V.Act.
26. Apart from the above, this Court in M.A.C.M.A. No.450 of
2021 on 15.03.2024, dealing with a claim made by the claimants on
account of the death of on Varampati Suresh Kumar Reddy, who
was driving the vehicle at the time of accident, made a categorical
observation that the deceased cannot be taken as a 3rd party in view
of section 163-A of the M.V.Act and held that at best Insurance
Company can be directed to pay the amount payable by it on
account of the personal accident coverage. Further this Court in
M.V.O.P.No.1640 of 2016 on 27.03.2024, dealt with similar situation
and directed the Insurance Company to pay the claimants the
personal accident coverage only.
27. Needless to point out here that the Tribunal without
ascertaining legal principles covering the issue, erroneously
awarded a compensation of Rs.2,21,109/-.
28. As seen from Ex.B1-Insurance Policy, it is quite clear that it
was in force as on the date of accident. As this Court already
pointed out that the petitioner cannot be taken as a 3rd party in view
of the settled legal position. As seen from Ex.B1, amount of Rs.25/-
was paid towards employee. Further personal coverage to
un-named passengers is for five (5) persons @ Rs.2,00,000/-.
Though the petitioner claimed that he is employee, being a driver,
but the facts and circumstances remains that he and respondent
No.1 colluded together. It appears that the petitioner stepped into
the shoes of the driver and owner. So, the petitioner cannot be
brought under the purview of un-named passenger to claim personal
accident coverage for a sum of Rs.2,00,000/-. As seen from the
evidence of RW.1, who is no other than the representative of the
Insurance Company, he put forth the facts in tune with the
pleadings. During the cross-examination, he deposed that as per
policy, 25% is collected for driver (under Workmen‟s compensation).
He admitted that in the vehicle, five (5) persons are permitted to
travel including the driver. It is to be noted that the premium
collected under workmen compensation was 25%. Hence, his
remedy, if any, so as to get compensation under workmen
compensation is elsewhere, but not before this Tribunal. The
petitioner cannot be granted any amount towards personal accident
coverage, as the premium was collected towards the un-named
passengers who may travel in the vehicle.
29. Viewing from any angle, this Court is of the considered view
that the claim under Section 163-A of the M.V.Act is not at all
maintainable and the Tribunal on erroneous appreciation of law and
facts erred in awarding compensation. Hence, the present appeal is
liable to be allowed and the award of the Tribunal is to be set aside.
30. In the result, the M.A.C.M.A. is allowed with costs, setting
aside the award, dated 09.08.2016, in M.V.O.P.No.67 of 2012, on
the file of the IX Additional District Judge - cum - Motor Accident
Claims Tribunal, Chittoor. The M.V.O.P.No.67 of 2012, on the file of
the IX Additional District Judge - cum - Motor Accident Claims
Tribunal, Chittoor, shall stand dismissed with costs.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
___________________________
JUSTICE A.V. RAVINDRA BABU
Dt.25.06.2024.
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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
Date:25.06.2024
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