United India Insurance Co. Ltd., ... vs Savarla Bheemaiah And 2 Others
2021 Latest Caselaw 3692 Tel

          HONOURABLE SRI JUSTICE N. TUKARAMJI

                       M.A.C.M.A.No.1238 of 2007


JUDGMENT:

This Appeal is directed against the judgment and decree

dt.06.12.2006 passed in MVOP.No.1951 of 2003 on the file of the V

Additional Metropolitan Sessions Judge (Mahila Court) - cum - XIX

Additional Chief Judge, City Criminal Courts, at Hyderabad.

2. The appellant herein is insurer / 2nd respondent in the claim

petition filed under Section 166(1) of Motor Vehicles Act, (M.V. Act)

seeking compensation of amount of Rs.1,00,000/- for the death of one

Sreenu in a motor accident dt.10.06.2003. The claim petitioners are the

parents of Sreenu / deceased.

3. The claimants' case in brief is that on 10.06.2003, at about 03:00

p.m., when Sreenu / deceased sat in the front portion of the tractor

bearing Registration No.AP-28-T-6420, the driver of the tractor drove it

at high speed in a rash and negligent manner, thus Sreenu / deceased fell

down from the tractor and sustained serious injuries all over his body

and while shifting to hospital, died. Consequently, the petitioners filed

the claim petition seeking compensation from the owner and insurer of

the tractor / 1st and 2nd respondents.

4. The Tribunal, after considering the evidence on record, awarded

Rs.86,000/- with interest at 7.00% per annum from the date of petition NTR,J ::2:: macma_1238_2007

till the date of realization, and held that the respondent nos.1 and 2 are

jointly and severally liable to pay the compensation.

5. The insurer / 2nd respondent contended that the Tribunal without

considering the fact that the deceased was an unauthorized / gratuitous

passenger on the tractor, and though it is violation of policy condition,

the Tribunal erroneously fastened the liability.

6. The primary issue for determination is "whether the deceased was

an unauthorized passenger on the tractor?".

7. The consistent version in the oral evidence of petitioner / PWs.1

and 2, and the respondents and the driver of Tractor as RWs.1 to 3, and

the statement of the 1st petitioner in FIR / Ex.A.1 are establishing that, on

the fateful day at relevant time Sreenu / deceased was travelling on the

tractor, and as the driver of the tractor drove it in a rash and negligent

manner, he fell down and suffered severe injuries and later died. In the

cross-examination, the 1st and 2nd petitioner as PWs.1 and 2, clarified

that their son / deceased was not travelling on tractor as labourer or fare-

paid passenger. It is common knowledge that the tractor will not have

any accommodation for the passengers and there is no other material to

consider otherwise. Therefore, any person other than the driver on the

tractor shall be held as an unauthorized passenger. To this extent, the

appellant / insurer's claim deserves acceptance.

8. The other pertinent question would be "whether the insurer is

liable to indemnify the owner / 1st respondent".

                                                                         NTR,J
                                    ::3::                     macma_1238_2007

9. The Manager of 1st respondent as RW.1, categorically stated that

the risk of unauthorized / gratuitous passenger is not covered under the

insurance policy. A reading of the Insurance of Policy / Ex.B.2 is

indicating that it is 'Miscellaneous and Special Type of Vehicles

Package Policy', with seating capacity only 'one', and no risk of any

worker or passenger is covered.

10. It is obvious that unauthorized passenger who is travelling on the

tractor cannot be considered as third-party. Therefore, the provisions of

Section 147 of the M.V. Act cannot enjoin any statutory liability on the

owner of the vehicle to ensure the risk of the passengers. In effect, the

Insurance Company would have no liability in this regard. As the facts

of rash and negligent driving of the driver causing accident and the death

are concluded, the owner / 1st respondent of the tractor, remains liable to

pay for compensation. Thus, the claim of appellant / insurer in this

appeal succeeds.

11. Accordingly, the MACMA is allowed. The appellant / 2nd

respondent / insurer is exonerated from the liability to indemnify the

insured / owner of the tractor in paying compensation to the claimants,

as awarded by the Tribunal.

12. The amounts deposited by the appellant / insurer shall be refunded

and if the amounts are disbursed to the claimants, the appellant / insurer

is at liberty to recover that amount from the 1st respondent / insured. No

costs.

                                                                       NTR,J
                                 ::4::                      macma_1238_2007

13. As a sequel, miscellaneous petitions pending if any in this Appeal,

shall stand closed.

______________________ N. TUKARAMJI, J

Date: 23.11.2021 Ndr