HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.105 OF 2011
JUDGMENT:
The New India Assurance Company Limited, (3rd
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-II Additional District Judge, (Fast
Track Court) Cuddaph, (for short, ’Tribunal’) in M.V.O.P.No.264 of 2000
dated 15.02.2005, awarding compensation of Rs.35,750/-(Rupees thirty five
thousand seven hundred and fifty only) with 9%p.a. interest as against the
claim of the respondent No.1 (claimant in the claim petition) of Rs.50,000/-(Rupees
fifty thousand only), in the claim petition under Section 166 of the Motor
Vehicle Act, 1988 (for short, ‘the Act’).
2. Heard Sri G.Vasantharayudu, learned
standing counsel for the appellant-Insurer Sri C.Damodar Reddy, learned counsel
for the 1st respondent-claimant, Sri C.J.Prabhakar, learned counsel
for the 3rd respondent-owner of the crime vehicle. The appeal
against the driver of the vehicle-2nd respondent-driver was dismissed for default.
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 went wrong in fixing pay and recover liability on the
Insurer despite there is violation of the conditions of the policy and the
provisions of the Motor Vehicle Act and Rules framed thereunder by the driver
and owner of the vehicle in allowing unauthorized passenger to travel on the
redgram load of the vehicle and said finding of the Tribunal is perverse and
illegal having held violation of policy ought to have dismissed the claim
against the Insurer and to claim as cleaner by the claimant-P.W.1 of the
offending vehicle, the question of once not believed treating as 3rd
party does not arise but for dismissal of the claim being unauthorized
passenger and the amount awarded is excessive so also rate of interest, hence
to reduce. Counsel for the appellant-Insurer also placed reliance upon the Apex
Court expression in National Insurance Company
Limited Vs. Cholleti Bharatamma[1].
4.Whereas, it is the contention of the
claimant as 1st respondent to the appeal, (from owner of the vehicle
remained absent) that there is evidence to say that the claimant was cleaner of
the vehicle and the Tribunal ought to have believed the same and a cleaner can
never be called as unauthorized passenger even the vehicle involved is a goods
vehicle and thereby dismiss the appeal even said finding of the Tribunal is
unsustainable, for nothing to interfere with said conclusion of pay and recover
instead of joint liability and on the quantum and on the rate of interest even.
5.
Now Points that arise for consideration are:-
1)
Whether
the award of the Tribunal is unsustainable in fixing liability on the Insurer to pay and recover and if so the compensation
and rate of interest are excessive and if so what observations?
2)
To what result?
Point-1:
6.
The claim petition was filed by the claimant with averment that on 12.05.1999
he along with others were going to Kalluru in connection with the visit of the
Chief Minister of Andhra Pradesh on the crime van bearing No.AP 27 T 6524
belongs to 2nd respondent in claim petition insured with the 3rd
respondent-appellant covered by Ex.B.1 policy and he was cleaner of the
vehicle, that the vehicle on hire for taking goods to market, Khammam engaged
by one K.Nageshwar Rao and with coolies after passing Somavaram village near
culvert 47/1 between Madhira-Wyra road, due to rash and negligent driving of
the driver of the van while negotiating turning, the van turtled where he along
with others sustained injuries which occurrence is covered by Ex.A.1 FIR.
Basing on the oral and documentary evidence in record, the Tribunal awarded
compensation of Rs.35,750/- in all with interest at 9%p.a. against the
respondents 1 to 3 with a direction to the 3rd respondent-appellant
to pay to the claimant and recover from the respondents 1 and 2 i.e. driver and
owner of crime vehicle.
7. From the above, the fact that the
accident was due to rash and negligent driving of the driver-1st
respondent of the crime vehicle belongs to the 2nd respondent-owner
insured with the 3rd respondent-Insurance company covered with
Ex.B.1 policy with reference to Ex.A.1 FIR is not in dispute. In claim petition
column No.4 para No.26(--) mentioned
occupation of injured as cleaner of the van. The claim petition averment was
that the vehicle was taken on hire by one Kolli Nageswara Rao for transporting
goods to Khammam market and engaged coolies for loading and unloading. The
owner of the vehicle is S.Bhushaiah s/o Eswaraiah. The driver of the vehicle
was katta Ramesh S/o Krishnaiah. Thus, when owner of vehicle not engaged the
claimant as employee as cleaner, the claimant to travel is as unauthorized
passenger. It is in fact, not a specific
case that even prior to the accident the claimant was working as a cleaner and
no proof even filed to believe as cleaner as held by the Tribunal. From the very
inconsistent averments in the claim petition, the vehicle was engaged for
transporting goods to market and engaged coolies and he among others were going
to the Chief Minister’s visit in the goods vehicle, had it been true, he was nothing
but unauthorized passenger to the Chief Minister’s programme traveling in the
goods carriage on the fateful time of accident dated 12.05.1999, even taken for
arguments sake of he was otherwise cleaner and others engaged as coolies, the
question of their going in that capacity to the Chief Minister’s programme does
not arise as it is not connected with their avocation and as such they are no
other than as passengers traveling to go to the programme. The coolies not even
engaged by owner of vehicle for loading and unloading from the above very say,
but for by one K.Nageswara Rao and thus they cannot be considered as workman
under WC Act of the owner to cover risk subject to policy terms by the
Insurer. The
Apex Court in similar case in National
Insurance Company Limited Vs. Savithridevi[2]
held in the factual matrix of Tata Mini Open Truck(goods carriage) engaged for
a marriage party and even there was evidence of earlier this vehicle was in use
for marriage parties as passenger carriage since registered as a goods carriage
and policy issued for goods carriage with terms and conditions speaking not
covered for organized racing pace or speed test etc., use whilst drawing a
trailer except the towing (other than for reward of anyone disabled
mechanically propelled vehicles) and use for carrying passengers except
employees (other than the driver) not exceeding six(6) coming under the purview
of W.C. Act. The Claims Tribunal went wrong in saying from mere fact of the goods
carriage was regularly in use for marriage
parties as passenger carriage and High Court also went wrong by misconception
of Insurer to make payment to the claimant and then recover from the estate of
the deceased owner of the vehicle by filing execution petition. The Hon’ble Supreme
Court held therefrom that admittedly when the Insurer would not know at the time,
the accident takes place as to for what purpose vehicle in question was being
used other than to say for terms of the policy creates bar of carrying
passengers except six employees under the WC Act other than driver, the persons
traveling in the goods carriage not come within the purview of W.C. Act and in
similar circumstances, the Court in National
Insurance Company Limited Vs. Bommithi Subbayamma[3]
at page 246 observed (referring to NIC
Vs. Baljit kour[4]
pay and recovery direction):-
“9. It is, therefore, manifest that in
spite of the amendment of 1994, the effect of the provision contained in
Section 147 with respect to persons other than the owner of the goods or his
authorized representative remains the same. Although the owner of the goods or
his authorized representative would now be covered by the policy of insurance
in respect of a goods vehicle, it was not the intention of the legislature to
provide for the liability of the insurer with respect to passengers, especially
gratuitous passengers, who were neither contemplated at the time the contract
of insurance was entered into, nor was any premium paid to the extent of the
benefit of insurance to such category of people’
10. The same view was reiterated in National Insurance Company Limited Vs.
Challa Upendra Rao[5]
Pramod Kumar Agarwal Vs. Mushtari Begum[6]
and also in National Insurance Company Limited V.Chinnamma[7]
11. In view of the aforementioned
authoritative pronouncements of this Court, the impugned judgment of the High
Court cannot be sustained which is set aside, accordingly. This Appeal is
allowed. We, however, make it clear that the claimant respondents will be
entitled to recover the amount of compensation granted in their favour by the
Motor Vehicles Accidents Claims Tribunal from the owner of the vehicle. No
costs.”
8. Having regard to the above, in this
case also for the claimant not proved by any record as working as cleaner under
the owner of the vehicle to come under W.C. Act and the purpose of their going
at the time of accident admittedly to the Chief Minister’s programme though
claimed earlier he was as cleaner in the vehicle with coolies for loading and
unloading of goods to the market, the Insurance Company cannot be made liable
and the pay and recovery direction issued is thereby unsustainable hence liable
to be set aside. Accordingly, Point No.1 is answered.
9. Coming to the rate of interest, the
interest at 9% per annum awarded by the Tribunal but as per the settled
proposition of law in TN Transport Corporation v. Raja Priya[8]
and Sarla Varma (supra) and from the latest expression of the Apex
Court in Rajesh (Supra), interest
is awarded at 7½% per annum therefrom and that the interest at 9%p.a. is modified
and reduced to 7½% p.a. Accordingly, Point-1 for consideration is answered.
POINT -2:
10. In the result, the appeal is partly allowed
setting aside the direction issued by the Tribunal for pay and recovery against
the Insurer in favour of the claimants and by fixing the liability only on the
owner of the vehicle and pursuant to the award if anything paid or deposited by
the Insurer and permitted to withdraw by the claimant, such amount be recovered
back from the owner so also any other amount in deposit made by the Insurer to
be claimed back by filing cheque petition. There is no order as to costs.
_______________________
Dr. B. SIVA SANKARA RAO, J
Date:
-02-2014
VVR
Note: L.R. copy to be marked. Yes/No
