*HONOURABLE
Dr. JUSTICE B. SIVA SANKARA RAO
+M.A.C.M.A.
No.1390 of 2007
% Dated
24.02.2014
Between:
# Cholamandalam MG General Insurance
Company Limited ...Appellant
and
$ Bathini Elendra
and others ….Respondents
! Counsel
for the Appellant : Sri Kota Subbarao
^ Counsel
for respondents 1 to 4 : Sri T.Damodar
Counsel for respondent No.5 :
none appeared
< GIST:
>HEAD NOTE:
? Cases referred:
1. 2005(12)SCC
243
2.2003 JT(7) SC-520
3. 2003 ACJ page 1
4. 2003(1) Supreme 732
5. 2003 ACJ 1550
6. 2007 ACJ 1043
7. 2008 ACJ 268 SC
8. 2007(7) Scale 753
9. 2013 ACJ page 1
10.2013(11) SCC 554
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.1390 OF 2007
JUDGMENT:
The Cholamandalam MG General Insurance
Company Limited (2nd respondent in the claim petition) filed this
appeal, having been aggrieved by the Order/Award of the learned Chairman of the
Motor Accidents Claims Tribunal–cum- District Judge, Warangal (for short, ‘Tribunal’)
in M.V.O.P.No.8 of 2005 dated 05.03.2007, awarding compensation of Rs.3,50,000/-(Rupees
three lakh fifty thousand only ) against the claim of the respondent Nos.1 to 4
(claimants in the claim petition i.e. wife, two major sons and minor daughter
of deceased) of Rs.5,75,000/-(Rupees five lakh seventy five thousand only), in
the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for
short, ‘the Act’).
2.
Heard Sri Kota Subbarao, learned standing counsel for the appellant, Sri T.Damodar,
learned counsel for the respondents 1 to 4-claimants. The 5th
respondent-owner of the crime vehicle though contested before the Tribunal did
not choose to appear before this Court and thus taken as heard the 5th
respondent for the absence to decide on merits and perused the record. The
parties hereinafter are referred to as arrayed before the Tribunal for the sake
of convenience in the appeal.
3. The contentions in the grounds of appeal as well as submissions
during course of hearing in nutshell are that the award of the Tribunal is
contrary to law, weight of evidence and probabilities of the case, that the Tribunal
gravely erred in passing pay and recover directions instead of totally
exonerating the Insurer, that the Tribunal erred in not considering the
factum of the deceased was travelling on the auto trolley which is goods
vehicle as unauthorized passenger after so called unloading of the
refridgerator and the Tribunal should have seen that the question of pay and
recover does not arise for unauthorized passenger of goods vehicle apart from
multiplier adopted and earnings of the deceased taken unsustainable and the
quantum is excessive. Hence, to exonerate by allowing the appeal.
4.The
learned counsel for the claimants
contended that for this Court while sitting in appeal there is nothing
to interfere with the reasoned award of the Tribunal, hence, to dismiss the
appeal confirming the award of the Tribunal.
5. Now the points that arise for
consideration in the appeal are:
1.
Whether the award of the Tribunal fastening joint liability on
the insurer with insured to indemnify the insured for the claimant(s) subject to pay and recover directions is
unsustainable and requires interference by this Court while sitting in the
appeal to exonerate the Insurer from joint liability?
2.
Whether the quantum of compensation awarded by the Tribunal is not just and requires interference
by this Court and if so with what extent and against whom with what rate of
interest and with what observations?
3.
To what result?
POINT-1:
6.
The facts of the case are that, on 16.03.2004 the deceased
B.Nageshwar Rao purchased a refridgerator in Gemeni Elecrtonics, Hanamakonda, for his sister and engaged auto trolley bearing No.AP36V8349 belongs to the 1st respondent insured with the 2nd respondent-appellant covered by Ex.B.2 policy and transporting the same at Ippaguda and while he was returning to Kazipet when the auto reached near Mahila Pranganam at Madikonda, due to rash and negligent driving of the driver of said auto with high speed went on wrong side and dashed against a stationed tractor/trailer and a tree, as a result the deceased who was sitting in the trolley of the auto, sustained grievous injuries and died on the spot, which occurrence is covered by Ex.A.1 FIR and Ex.A.4 charge sheet. The learned Tribunal basing on the oral and documentary evidence on record, awarded in all compensation of Rs.3,50,000/-out of Rs.5,75,000/- with interest at 7.5%p.a. against both the respondents in the claim petition directing the 2nd respondent-Insurer first to pay and then to recover from the 1st respondent-owner.
B.Nageshwar Rao purchased a refridgerator in Gemeni Elecrtonics, Hanamakonda, for his sister and engaged auto trolley bearing No.AP36V8349 belongs to the 1st respondent insured with the 2nd respondent-appellant covered by Ex.B.2 policy and transporting the same at Ippaguda and while he was returning to Kazipet when the auto reached near Mahila Pranganam at Madikonda, due to rash and negligent driving of the driver of said auto with high speed went on wrong side and dashed against a stationed tractor/trailer and a tree, as a result the deceased who was sitting in the trolley of the auto, sustained grievous injuries and died on the spot, which occurrence is covered by Ex.A.1 FIR and Ex.A.4 charge sheet. The learned Tribunal basing on the oral and documentary evidence on record, awarded in all compensation of Rs.3,50,000/-out of Rs.5,75,000/- with interest at 7.5%p.a. against both the respondents in the claim petition directing the 2nd respondent-Insurer first to pay and then to recover from the 1st respondent-owner.
7.
The fact that the accident was rash and negligent driving of the driver of the goods
auto trolley of the 1st respondent insured with the 2nd
respondent-appellant covered by Ex.B.1 policy proved from the evidence of
P.Ws.1 and 2 coupled with Exs.A.1 FIR and Ex.A.4charge sheet apart from Ex.A.6
MVI report and Ex.A.5 PM report not in dispute and no way requires interference
by this Court.
8.
Coming to the liability of the Insurer concerned undisputedly the crime vehicle
is a goods i.e. auto trolley i.e. Light Motor Vehicle transport vehicle and the
deceased claimed as owner of goods. So
far as taking of the refridgetator from the shop of Gemini Electronics,
Hanumakonda to the house of his sister at Ippaguda is concerned he is
owner/attendant of the goods in the goods vehicle and admittedly the
refridgerator was unloaded. When such is the case, he is no longer owner or
attendant of goods for return journey as passenger on the goods vehicle but for
to say unauthorized passenger. When such is the case, even the owner of the
goods can travel, it is only with goods as owner or attendant of the goods and
not beyond in a goods vehicle and thereby when the accident occurred after the
refridgerator was unloaded at his sister’s house and while returning from
Ippaguda towards Hanumakonda by travelling in the goods vehicle, the question
of fastening liability against the Insurer does not arise much less even to pay
and recover liability as per the settled expressions that the policy of the
goods vehicle no way covers to carry passengers except the employees others than driver, not exceeding six
in number under the Workmen Compensation Act at best and Section 147 not
provided for any statutory liability to the passengers of goods vehicle if no
additional premium paid to cover such risk vide decisions in National Insurance Company Limited Vs.
Bommitha Subbayamma[1],
National Insurance Company Limited Vs. Ajit Kumar[2],
National Insurance Company Limited Vs.
Asharani[3],
Oriental Insurance Company Limited Vs. Devireddy
Konda Reddy[4],
Ramashrya singh Vs. New India Assurance
Company Limited[5],
New India Insurance Company Limited Vs. Vedawathi[6],
National Insurance Company Limited Vs. Cholleti Bharatamma[7],
Oriental Insurance Company Limited Vs.
Birj Mohan[8],
National Insurance Company Vs. Sanjeev Kumar Samrat[9]
National Insurance Company Limited Vs.
Savitridevi[10]. Thus, said finding of the Tribunal on
fixing joint liability against the Insurer to the extent of pay and recover even
the risk not covered by policy to travel after unloading of goods is liable to
be set aside. Accordingly, point No.1 is answered.
Point No.2:
9.So far as the quantum of
compensation is concerned, what the Tribunal awarded of Rs.3,50,000/- by
assessing the earnings of the deceased as on the date of accident 16.03.2004
from the claimants out of 4, even two sons not dependents but for wife and
unmarried daughter, to deduct 1/3rd towards personal expenses, as
rightly did so by the Tribunal by
assessing the earnings at Rs.3,000/- per month for no proof of earnings by
applying 13 multiplier by taken the age
above 46 years, and the entitlement of loss of consortium, funeral expenses and
loss of estate as per Rajesh v. Rajbir Singh[11]
it no way requires interference as it comes more but for no cross-objections to
increase vide decision in Ranjana Prakash Vs. Divisional Manager[12].
Accordingly, point-2 is answered.
Point No.3:
10.In
the result, appeal is partly allowed by setting aside the pay and recover
liability against the Insurer by exonerating the Insurer from liability, by
fixing the entire liability on the owner of the vehicle to the claimants. It is
needless to say the amount in deposit made by the Insurer, save to the extent
already permitted if any of the claimants to withdraw, is entitled to claim
back by filing cheque petition by the Insurer and so far as the amount out of
it permitted by this Court to withdraw by the claimants concerned, the Insurer
is entitled to recover the same from the owner of the vehicle. There is no
order as to costs.
11.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
24-02-2014
VVR
Note: L.R. copy to be marked. Yes/No
