HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.3199
OF 2011
JUDGMENT:
The 2nd respondent-M/s Reliance
General Insurance Company Limited-Insurer among the two respondents including
the owner of the Tractor and Trailer bearing No.AP22/W-1065/1066 of the O.P.No.46
of 2009 on the file of the learned Chairman of the Motor Accidents Claims
Tribunal–cum-Additional District Judge, Mahaboobnagar(for short, ‘Tribunal’),
filed under Section 166 of the Motor Vehicle Act,1988 (for short, ‘the Act’), by the claimants no other than the wife and
minor son of the deceased Mohd.Nizamuddin, aged about 50 years as per Ex.A.4
Postmortem report, for the claim of Rs.3,00,000/- since granted Rs.2,21,200/-
with interest at 7.5% p.a. by fixing joint liability against the owner an
Insurer(both the respondents) by its award dated 01.08.2011, aggrieved by the
same, preferred this appeal with the contentions in the grounds of appeal that
the award of the tribunal is contrary to law, the tribunal gravely erred in
awarding the compensation fixing liability on the Insurer despite policy not
covers the risk of the employee or cooli for what Rs.25/- is collected for the
driver only, that when the seating capacity of the tractor is only one for the
driver and there is no provision in the trailer for anybody to sit and travel, no
question of covering risk of coolies or employees arises and that the compensation
awarded by the tribunal is also excessive, hence to allow the appeal by exonerating
the Insurer by setting aside the award. The learned standing counsel for
the appellant-Insurer reiterated the same contentions during course of
hearing.
2. Whereas, it is the contention of the
learned counsel for the claimants, from the owner failed to appear though
served notice taken as heard to decide on merits, that the award of the
tribunal holds good and for this Court while sitting in appeal there is nothing
to interfere.
3. The Cross-Objections
filed with delay condonation of 390 days in MACMAMP No.5168 of 2011 is dismissed
for no grounds to condone delay.
4. Perused the material on record. The parties hereinafter are referred to as
arrayed before the Tribunal for the sake of convenience in the appeal.
5. Now the points that arise for
consideration in the appeal are:
1.
Whether the award of the tribunal dated 01.08.2011 fixing joint
liability of the Insurer-appellant herein along with the owner of the crime
vehicle (tractor and trailer) is unsustainable and requires interference by
this Court while sitting in the appeal, if so, with what observations?
2.
To
what result?
Point
No.1:
6. The manner of the
accident is not in dispute much less to interfere with the finding of the
tribunal that the accident was the result of rash and negligent driving of the
driver of the tractor and trailer–the crime vehicle of the 1st
respondent insured with the 2nd respondent-appellant herein. Now coming to the liability of the 2nd
respondent-Insurer is concerned, undisputedly, the policy is not mere Act
policy though the employee of the insurer as R.W.1 deposed with reference to
the Ex.B.1 policy as if there is no premium collected for the trailer and on
perusal of the policy it speaks Rs.550/- additionally collected to cover the
risk for the use of the trailer, besides basic premium of Rs.800/- for the
tractor with accessories non-electronic and further for owner –cum-driver of
Rs.100/- collected and legal liability to employees Rs.25/- is collected. It is
the contention of the Insurer that the legal liability of Rs.25/- covers the risk
of one employee i.e. only the driver as tractor propelled to the trailer with
the single seat and there is no coverage of risk for any employee under the insured
including for loading and unloading. No doubt, in the policy nowhere mentioned
as IMT 39 for loading and unloading and employees including to travel for
unloading. The fact remains that it is not even mentioned as IMT 17 and it is
only a personal accident coverage to driver, cleaner and conductor or any of
them. When such is the case, and it is
as vague as anything in collecting Rs.25/- for any specifically as to for
driver or other employee under the insured, when the Act policy itself under
Section 147 sub section(1) proviso (i) clause(a) covers the risk of the driver
, the question, under the W.C.Act, of paying premium of Rs.25/- as legal
liability to employee does not arise in the absence of specifically reflecting
to the driver, much less under IMT 17 coverage. As such that too when the trial
Court having so held that it covers risk of the employee and the deceased herein
is no other than the employee under the insured proved from the record, for
this Court while sitting in appeal there is nothing to interfere merely because
there is no seating capacity for the employee for unloading and thereby travel
with the load sitting on the trailer. Accordingly, Point No.1 is answered.
POINT
No.2:
7. In the
result, the appeal is dismissed with no costs. Consequently,
miscellaneous petitions, if any, pending in this appeal shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date: 23.12.2014
Vvr
