Telangana High Court
Galivadda Narsimulu vs B.Kondal And Another on 3 March, 2025
HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI
M.A.C.M.A.No.2192 OF 2014
JUDGMENT:
Aggrieved by the Order and Decree dated 19.08.2011
(hereinafter will be referred as 'impugned order') passed by the
learned Judge, Family Court - cum - VII Additional District and
Sessions Judge, Medak at Sangareddy (hereinafter will be
referred as 'Tribunal') in O.P.No.445 of 2009, the Appellant, who
is the claimant, filed the present Appeal to impose the liability
on respondent No.2 to pay compensation to the claimant along
with respondent No.1 jointly and severally.
2. For the sake of convenience, the parties hereinafter are
referred as they were arrayed before the Tribunal.
3. The brief facts of the case as can be seen from the record
are as under:
a) The petitioner filed claim petition under Section 166 of the
Motor Vehicle Act claiming compensation of Rs.2,00,000/-
against respondent Nos.1 and 2 for the injuries sustained by
him in the road traffic accident that occurred on 11.07.2003.
The petitioner alleged in the petition that on 11.07.2008 while
he along with another left in the trolley auto bearing No. AP 25
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V 7214 with medicines load in order to distribute in retail
outlets in the surroundings of Hyderabad; when they were
returning on 12.07.2008 in the auto with balance medicines at
about 0015 hours at the outskirts of Reddypally Village, the
auto hit the divider on the road due to the rash and negligent
driving of the auto driver, as a result, the auto over turned and
thereby one Ch. Balraj died on the spot and whereas the
claimant received grievous injuries. The petitioner/injured was
shifted to Balaji Hospital, Secunderabad, wherein he obtained
treatment as inpatient from 12.07.2008 to 23.07.2008.
Thereafter, the petitioner got admitted in Jeevadara Hospital,
Kamareddy, wherein he was treated as inpatient from
23.07.2008 to 26.07.2008. The petitioner alleged to have
incurred Rs.1,20,000/- towards medicines and frequent visits to
the hospital.
b) A case in Crime No.147 of 2008 of Chegunta Police
Station was registered against the driver of the crime vehicle for
the offence under Sections 304-A and 337 of the Indian Penal
Code. The petitioner prayed to award compensation of
Rs.2,00,000/- from the respondents Nos.1 and 2 as the
accident occurred due to the rash and negligent driving of the
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driver of the crime vehicle, which belongs to the respondent
No.1 and insured with respondent No.2.
4. Before the learned Tribunal, in reply to the above petition
averments, the respondent No.2 filed counter and whereas the
respondent No.1 remained exparte. The respondent No.2 denied
the averments of the petition including the manner of the
accident, age, occupation and income of the injured. The
respondent No.2 further contended that the accident occurred
due to over load of auto with unauthorized passenger, as such,
the respondent No. 1 violated the conditions of the policy by
allowing unauthorized passenger to travel in the crime vehicle
and thus, prayed to dismiss the petition.
5. In order to establish his claim before the learned
Tribunal, PWs 1 and 2 were examined and Exs.A1 to A10 were
exhibited on behalf of the petitioner. On the other hand, the
RW1 was examined and Exs.B1 to B3 were marked on behalf of
the respondents.
6. The learned Tribunal after considering the rival
contentions, passed the impugned order awarding Rs.63,000/-
as compensation to the petitioner imposing the liability only on
respondent No.1. Aggrieved by the same, the petitioner filed the
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present Appeal to direct the respondent No.2 to be jointly and
severally liable to pay compensation to the claimant along with
respondent No.1.
7. Heard Sri Palle Sriharinath, learned Standing Counsel for
the Appellant/petitioner and Sri Kondadi Ajay Kumar; learned
Standing Counsel for the respondent No.2/Insurance Company
and perused the material available on record including the
grounds of appeal.
8. It is to be seen that the respondent Nos.1 and 2/owner
and insurer have not preferred any Appeal challenging the
impugned order. Further, the present Appeal is not filed
seeking enhancement of the compensation awarded by the
learned Tribunal. There is no dispute with regard to
subsistence of Ex.B3 insurance policy as on the date of the
accident.
9. The first and foremost contention of the learned counsel
for the claimant is that the learned Tribunal committed grave
error in awarding compensation as against respondent No.1
only on the ground that the injured was traveling as gratuitous
passenger in goods vehicle; Ex.B3 is a package policy under
which third party risk is also covered as premium of Rs.1,530/-
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was paid apart from covering the risk of owner/driver; the
claimant comes under definition of 3rd party, as such, the
respondent No.2 ought to have been made liable to pay
compensation along with respondent No.1.
10. Admittedly, the petitioner/claimant has not filed any
document to establish that the goods in the crime vehicle belong
to him. The petitioner has not filed any scrap of paper to
establish that he is the partner of Sai Krishna Medical Agencies.
The petitioner did not even file any document in connection with
supply or distribution of medicines in the auto either before the
learned Tribunal or before this Court. In the absence of any
such material, the learned Tribunal arrived to a conclusion that
the petitioner is a gratuitous passenger. Usually the insurance
policies for goods carrying vehicles do not cover gratuitous or
unauthorized passengers and thereby insurers are absolved
from liability in such cases. Allowing unauthorized passengers
in a goods-carrying vehicle constitutes a violation of the
insurance policy terms, leading to the insurer's exemption from
liability. However, it is the contention of the petitioner/
claimant that the respondent No.2 /Insurance Company did not
take any steps to examine the driver of the crime vehicle to
establish that the injured was traveling as gratuitous/
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unauthorized passenger. But it is relevant to note that the
burden of proof is on the person who wants the court to believe
in the existence of a fact. In the instant case, it is the
petitioner/claimant who asserted that he is working partner of
Sai Krishna Medical Agencies. Once, the petitioner establishes
that he is working partner of Sai Krishna Medical Agencies, he
is no longer a gratuitous passenger. In such case the burden is
on the petitioner to establish that working partner of Sai
Krishna Medical Agencies. Moreover, it is the
petitioner/claimant who alleged to have traveled in the crime
vehicle for distribution of his medicines and thereby, the burden
is caste upon the petitioner/claimant to examine the driver to
establish his contention. Thus, in the absence of any material
and having no other option, this Court is inclined to affirm the
finding of the learned Tribunal that the petitioner/claimant and
his relative Balraj were traveling as gratuitous passengers.
Thus, the owner of the crime vehicle has violated one of the
terms and conditions of the insurance policy deliberately.
11. Now coming to the seating capacity of the crime vehicle, a
perusal of Ex.B3 discloses that the carrying capacity of the
crime vehicle is 'one'. Further, in the third point shown in
column of 'limitation as to use' of Ex.B3 it is clearly mentioned
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that 'use for carrying passengers in the vehicles; except
employees (other than the driver not exceeding the number
permitted in the registration document and coming under the
purview of Workmen's Compensation Act, 1923'. In the present
case, the number of the passengers traveling in the crime
vehicle were three i.e., driver, petitioner/injured and his relative
Balraj/deceased. Thus, the crime vehicle was not only carrying
the goods but also three passengers and thereby the crime
vehicle was overloaded, which resulted in accident. Thus, the
owner of the crime vehicle violated the terms and conditions of
the insurance policy by allowing more than the prescribed
capacity in the crime vehicle.
12. It is the specific case of the petitioner/claimant that in
case of covering the risk of third parties, if any violation of terms
and condition of the insurance policy, the insurance company
should pay first and recover from the owner. It is to be
observed that "pay and recover" cannot be ordered in situations
where the vehicle was being used for a non-covered purpose.
Similarly, if the owner was aware of a major violation of policy
terms, or if the claimant was significantly responsible for the
accident, then the insurance company is not legally liable to pay
the claim in the first place. As stated supra, the capacity of the
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crime vehicle is 'one' and the claimants are also aware of the
same. The claimant is aware that it was a goods carriage
vehicle and despite knowing the same he along with his relative
alleged to have boarded the said goods carriage vehicle along
with goods (medicines). The crime vehicle was meant for
carrying goods within the meaning of the Motor Vehicles Act.
The vehicle permits employees not exceeding the number
permitted in the registration document. Even for the sake of
arguments, if the claimant is considered as working partner of
Sai Krishna Medical Agencies, the number of persons permitted
to board the said vehicle is limited to the number permitted in
the registration document. It is not the case of the
petitioner/claimant that his relative was also an employee or
working partner of Sai Krishna Medical Agencies. As stated
supra, a perusal of Ex.B3 discloses the carrying capacity '1'.
Despite having knowledge of the same, the owner/driver of the
crime vehicle exceeded the permissible members/employees to
board the vehicle along with the goods. Thus, viewed from any
angle the option of 'pay and recover' cannot be invoked in the
instant case, more particularly in view of the deliberate
violations committed by the owner/driver of the crime vehicle
i.e., respondent No.1. The learned Tribunal after considering all
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these aspects has rightly imposed the liability on the respondent
No.1 by exonerating the respondent No.2. This Court does not
find any merit in imposing the liability on the respondent
No.2/Insurance Company for the deliberate violations of the
owner/driver of the crime vehicle. Hence, this court finds no
irregularity or infirmity in the impugned order so as to interfere
with the findings arrived by the learned Tribunal.
13. In view of the above facts and circumstances, this Court
is of the firm opinion that the appellant/claimant/petitioner
failed to establish any of the grounds to set aside the well
reasoned order passed by the learned Tribunal. Thus, the
present Appeal is devoid of merits and liable to be dismissed.
14. In the result, the Appeal is dismissed. There shall be no
order as to costs.
Miscellaneous petitions, if any, pending shall stand
closed.
_______________________________
JUSTICE M.G. PRIYADARSINI
Date: 03.03.2025
AS
