HONOURABLE
Dr. JUSTICE B.SIVA SANKARA RAO
M.A.C.M.A.No.143
OF 2011
JUDGMENT:
The 2nd respondent-Insurance Company in O.P.578
of 1995 filed this appeal, having been aggrieved by the Order/Award of the
learned Chairman of the Motor Accidents Claims Tribunal–cum–District Judge, Mahaboobnagar,
(for short, ‘Tribunal’)
dt.18.08.2010, granting compensation prayed for of Rs.75,000/- with interest at
7.5% p.a. against the Insurer also in the claim filed by the parents, minor
brother and two minor sisters of the deceased Kuruva Gopal under Section 166 of
the Motor Vehicle Act,1988 (for short,
‘the Act’).
2. Heard Sri A.V.K.Prasad, the learned counsel for the
appellant. Among the claimants, 1st respondent died and for respondent
Nos.2 to 5 none appeared even served. The 6th respondent-owner of
crime vehicle also failed to appear despite notice. Thus taken as heard the respondents for their
absence to decide on merits. Perused the material on 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 accident dated
14.05.1994 took place while the deceased was proceeding in the crime goods
carriage van bearing No.APM 3786 along with 20 more passengers, and when the
Insurer proved through R.W.1 his employee that the deceased was not covered under
the Ex.B.1 policy as the deceased was one of unauthorized passengers and the
Tribunal went wrong in fixing liability on the Insurer in stead of exonerating.
4. A
perusal of the award shows the Tribunal fixed joint and several liability
against the 1st respondent-owner as well as 2nd
respondent-Insurer of the van from Ex.B.1 policy covers risk of third party and
owner of goods mainly basing on the admissions said to have been made by R.W.1
Administrative Officer of the Insurance Company of the deceased was travelling
in the goods vehicle as owner of the goods.
The Insurer thus impugns said finding of the Tribunal as erroneous
outcome by not considering the factum of the deceased was one among several
unauthorized passengers of the goods carriage and out of them due to the
vehicle driver’s rash and negligent driving, it turned turtle and five passengers
died including the deceased K.Gopal herein and more than 20 persons injured.
5).Now
the points that arise for consideration in the appeal are:
1. Whether finding of the Tribunal in
fixing joint liability against the Insurer and Insured for the death of
deceased in the accident as owner of the goods is unsustainable and requires
interference by this Court while sitting in appeal to set aside the same if so,
with what observations?
2. To what result?
POINT-1:
6. The
very FIR which set the law into motion i.e. first document also in point of
time regarding occurrence by one of the injured among several passengers
travelling in the public carriage van by name Moodavath Veeresh reads that, on
the fateful day he came from Aiza to Maldakal by travelling in the private bus,
for no place in the bus inside, he sat on the top of the vehicle, that it is
due to rash and negligent driving of the driver when reached near Bussipadu
village it lost control and turned turtle that he fell down and among several
persons travelling therein, Kuruva Gopal, Krishna Reddy, Boya Narsanna, Thukya and
another unidentified person were succumbed to injuries and more than 20 to 25
persons sustained injuries and they were shifted to Government hospital, Gadwal
and the driver’s name is Syed Ahmed and the vehicle is No.APM 3786, hence to
take action against the bus driver.
7. Ex.B.1
policy issued by 2nd respondent for this vehicle APM 3786 referred
in the Ex.A.1 FIR supra of Hindusthan 1969 make, closed body with gross weight
9072 kgs., is a public carrier and the net premium collected is Rs.1275/- and
the owner name is U.Mallaiah i.e. claim petition-1st respondent.
This itself crystal clear that it is a closed public carriage to say
practically of passenger vehicle from the policy also referring as public
carrier, though the format for the policy issued used for goods carriage
vehicle format. The relevant column clearly speaks for public carrier/private
carrier as public carrier. The
chargesheet also speaks about 25 passengers were injured and 5 persons died and
among the L.Ws.1 to 58 of the charge sheet L.Ws.13 to 36 are referred as
injured eye witnesses besides the L.W.1 complainant injured-cum-eye witness
also travelling in the vehicle. The L.Ws.2 to 10 are among the family members of
the 5 persons died. It is to say more than 23 among the passengers travelling
were injured apart from other passengers travelling not sustained injuries
referred 3 or more besides 5 persons died. There is no information as to how many claims
filed and what is the seating capacity and details of the permit. What the Insurer contested in the counter is
they are unauthorized passengers of the goods vehicle which is not correct if
referring to the policy. In fact, no
effort made to cause serve the permit of the vehicle and registration of the
vehicle either as goods carriage or passengers carriage that is criteria. Even R.W.1 Administrative Officer of Insurer
in the chief examination stated as if while claiming by the claimants of deceased
as owner of the goods but unauthorized passenger as per chief examination. There is a suggestion in his
cross-examination that it is a goods carriage and the deceased was carrying with
him goods which he admitted. There is something not come out from the Insurer
from the above to say all are unauthorized passengers of the public passenger
carriage but for to the permitted limit to lessen the risk to indemnify the
owner. In fact if it is the passenger
vehicle and the persons entitled to travel within seating capacity, the
registration and permit if placed before the Court, then if the claim petitions
filed are more than the seating capacity, the principle of law laid down by the
Apex Court in National Insurance Company Limited Vs.Anjana Shyam[1]
that applies to adopt. The contention of the Insurer as if it is a goods
vehicle cannot be readily accepted, but for to decide from policy terms and
conditions in showing as public carriage without specifying the coverage how far and for how many. There is also no material as to how many claims field what is
their fate. Thus it is a fit case to remand the matter back to the Tribunal to
permit further evidence by both sides and by cause summoning the records by the
Tribunal from the RTA concerned of registration and permit as Court witnesses
to place on record to ascertain whether it is a passenger vehicle or goods
vehicle, as when there are no goods in that vehicle from what is discussed
supra and if it is really a goods
vehicle, the inadvertent admission by R.W.1 that placed reliance solely by the Tribunal is not correct, as evidence
is to be appreciated as a whole from the material on the record placed by the
parties with reference to the facts and attendant circumstances and not from picking
up to choose any isolated sentence. When
such is the case, if it is really a passenger vehicle on such summoning by the
Tribunal of the RTA records as a court witness as directed from proof, then to
ascertain how many claims filed so far
in the District Court-cum-Chairman of the Tribunal, Mahaboobnagar apart from no
information regarding claims filed elsewhere and to confine liability of the Insurer
from policy to direct indemnify maximum claims of the highest amounts and to
fasten rest of liability exclusively on the owner of the vehicle to apportion
among all claimants in proportion to their clams as laid down by the Apex Court
in Anjanshyam(supra). It is needless to say mere overloading in such
event not entitles the Insurer to escape liability as per the settled law of
the Apex Court in B.V.Nagaraju Vs. Oriental Insurance Company Limited[2].
Accordingly, point No.1 is answered.
Point
No.2:
8. In
the result, the appeal is disposed of by setting aside the award of the
Tribunal and restoring the O.P.578 of 1995 on the file of the Motor Accident
Claims Tribunal, Mahaboobnagar, and by remanding the matter to the Tribunal.
The Tribunal is directed to withhold and invest entire amount deposited by the
Insurer so far in this claim and in other claims connected to the extent, not already
permitted and withdrawn; subject to the result to consider. The Tribunal within the scope of the remand is directed and
to summon the RTA concerned as Court witness with relevant records regarding
vehicle registration and permit to ascertain whether it is a goods vehicle so
as to exonerate the Insurer from total liability for no goods carrier in vehicle
and the claimant’s claim of deceased was travelling as owner of the goods is
not correct, unless it is proved from any scene observation panchanama of any
goods to correlate if so of whom and whether of different persons cannot
consider any of them as owner but for respective luggage not to fasten
liability for it on Insurer, but for to fasten the liability only on the owner
for the claim herein; and if it is not a goods vehicle but a passenger vehicle
and the policy is a standard policy as
per IRDA regulations, dated 16.11.2009 to make liable to the extent of seating
capacity for the maximum and of the highest claims to apply the principal of Anjana
Shyam (supra). There is no order as to costs.
_________________________
Dr. B. SIVA
SANKARA RĀO, J
Date:
-02.2014
VVR
Note:
L.R. copy to be marked. Yes/No
