The Oriental Insurance Company ... vs Md. Shamenunnisa,
2021 Latest Caselaw 4446 Tel

              HONOURABLE JUSTICE G. SRI DEVI

                    M.A.C.M.A. No.3704 of 2005

JUDGMENT:

Aggrieved by the award and decree, dated 05.04.2005, passed

in M.A.T.O.P.No.1141 of 1998 on the file of the Motor Accidents

Claims Tribunal (FTC-I)-II Additional District and Sessions Judge,

Khammam, the Oriental Insurance Company Limited, preferred the

present appeal under Section 173 of the Motor Vehicles Act, 1988.

For the sake of convenience, the parties have been referred to

as arrayed before the Tribunal.

The claimants filed a petition under Section 166 of the Motor

Vehicles Act claiming compensation of Rs.3,50,000/- for the death of

the deceased Nissar Ahmed Lape, who died in a motor vehicle

accident that occurred on 27.12.1997 while the deceased was

traveling in the lorry bearing No.AP-16-T-2880 along with gunny

bags and animal skins, the 1st respondent-driver of the said lorry

drove it in a rash and negligent manner with high speed and lost

control over the steering, due to which the lorry hit to a road side

tree and turned turtle and the deceased, who was traveling in the

said lorry, died on the spot. On a complaint, a case in Crime No.47

of 1997 of Chittoor Police Station, was registered against the 1st

respondent. Since the 1st respondent being the driver, 2nd

respondent being the owner of the vehicle and the 3rd respondent

being insurer of the vehicle, are jointly and severally liable to pay

compensation.

Before the Tribunal, the case against the 1st respondent was

dismissed for default and the 2nd respondent remained ex parte. The

3rd respondent filed written statement denying the averments of the

claim petition and contended that the amount of compensation

claimed is excessive and prayed to dismiss the claim petition.

After contest, the claim-petition was partly allowed with

proportionate costs directing the respondents 2 and 3 to pay

compensation of Rs.2,55,000/- with interest at 9% p.a. from

05.10.1998 till the date of deposit, giving liberty to the 3rd respondent

to recover the compensation amount paid by it from the 2nd

respondent by executing the award. Aggrieved by the same, the

present appeal has been filed by the Insurance Company.

Heard Ms. I.Mammu Vani, learned Counsel for the appellant-

Insurance company, Sri Karri Murali Krishna, learned Counsel for

the respondents-claimants and perused the record.

Learned Counsel appearing for the appellant/Insurance

Company contended that since the deceased was traveling in the

transport vehicle as unauthorized passenger and that there is no

coverage of risk for such passenger in the policy, the Tribunal erred

in directing the Insurance Company to first pay the compensation

awarded to the claimants and then recover the same from the owner

of the vehicle. He further submits that the Tribunal ought to have

seen that the owner of the vehicle has not taken the policy to cover

the risk of unauthorized passenger in the transport vehicle and there

is a violation of the policy conditions by the owner and driver of the

vehicle. Hence, the liability for payment of compensation for death

or bodily injury to the passengers of such goods vehicle would not

be covered and the principle of pay and recover would not apply.

In support of his contention he relied upon the judgments of the

Apex Court in National Insurance Company Limited v. Baljit Kaur

and others1 and National Insurance Company v. Bommathi

Subbayamma and others2.

Learned Counsel for the claimants, would submit that the

order passed by the Tribunal is well considered and needs no

interference of this Court. He further submits that though the

deceased traveled in the goods vehicle as an unauthorized

passenger, the liability of the insurance company cannot be

exonerated.

Having considered the rival contentions, it is not in dispute

that the lorry in question is a goods carriage vehicle and at the time

of accident, the deceased was traveling in the said lorry as a

gratuitous passenger and that the vehicle was insured with the

appellant-Insurance Company and Ex.B-1-policy clearly indicates

that the accident has occurred during the policy period and hence it

AIR 2004 SC 1340

2005 ACJ 721 (SC)

can be said that the deceased travelled as a gratuitous passenger in

the crime vehicle. In Anu Bhanvara Vs. Iffco Tokio General

Insurance Company Limited3, the Apex Court while dealing with

the case of gratuitous passengers, directed the insurer to pay the

awarded sum to the claimants therein and recover the same from the

insured in the same proceedings. Hence, the Tribunal has rightly

directed the Insurance company to pay the compensation amount

first to the claimants and then recover the same from the owner of

the vehicle i.e., 2nd respondent. Therefore, I see no reason to

interfere with the order of the Tribunal and the appeal is liable to be

dismissed.

Accordingly, the Motor Accidents Civil Miscellaneous Appeal

is dismissed confirming the award and decree passed by the

Tribunal. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

___________________ JUSTICE G. SRI DEVI

17.12.2021 gkv/Gsn

2019(5) ALD SC 287