Andhra HC (Pre-Telangana)
Vachala And Ors. vs V.R. Kumar And Anr. on 25 June, 2004
Equivalent citations: I(2007)ACC895, 2006ACJ2098, 2004(5)ALD30, 2004(5)ALT460, 2004 A I H C 4041, (2004) 3 TAC 862, (2007) 1 ACC 895, (2004) 5 ANDH LT 460, (2004) 5 ANDHLD 30, (2006) 3 ACJ 2098
ORDER C.Y. Somayajulu, J.
1. Appellants, who are the widow and children of Dorairaj (the deceased), who died due to an accident caused by an auto trolley belonging to the first respondent and insured with the second respondent, have preferred a claim petition for Rs. 1,50,000/-. Respondents filed counters contesting the claim petition. In support of the case of the appellants, first appellant was examined as P.W.1 and Exs.A.1 and A.2 were marked. No oral evidence was adduced by the respondents but Exs.B.1 and B.2 were marked by consent. The Tribunal, having held that the accident occurred due to the rash and negligent driving of the driver of the auto belonging to the first respondent, passed an award for Rs. 1,35,000/- but accepting the contention of the second respondent that it is not liable to pay compensation because the deceased was not travelling in a goods vehicle, exempted the second respondent from its liability. Aggrieved by the Tribunal, exonerating the second respondent from its liability, this appeal is preferred by the claimants.
2. The point for consideration is whether the second respondent is liable to pay the compensation payable to the appellants?
3. The contention of the learned Counsel for the appellants is that since the deceased was travelling as the representative of the owner of the goods in a goods vehicle, he is covered by Section 147 of the Motor Vehicles Act, 1988 (the Act) and so the insurer also is liable to pay the compensation payable to the appellants. The contention of the learned Counsel for the second respondent is that since insurance of the offending vehicle does not cover the risk of any passenger and since Ex.B.2, a true extract of the permit ('B' Register) issued in respect of the offending vehicle, shows that only driver can be the person that can travel therein, question of anybody else (apart from the driver) travelling in the offending vehicle either as a owner or authorized representative of the owner of the goods does not arise for the second respondent being made liable for payment of compensation to the victim or his legal representatives.
4. Ex.B.2, true extract of the "B" register relating to the offending vehicle, shows that it originally was a open (hackney) carriage (Auto Rickshaw Cab) having seating capacity of 'Four in all' and by the proceedings in R.No. 7713/A5/93 dated 20.4.1993, the following alterations were made with effect from 20.4.1993.
"(1) Class of Vehicle - L.M.V goods vehicle; (2) Seating Capacity - one; (3) D.L.W : 330 Kgs;
and (4) R.L.W - F.A.W-300 Kgs and R.A.W-600 Kgs."
Therefore, it is clear that the seating capacity of the offending vehicle is only one i.e., the driver alone can travel in the vehicle. The offending vehicle being a light motor goods vehicle with seating capacity for one i.e., driver, question of anybody else either it be the owner of the goods, or his authorized representative, being allowed to travel therein cannot arise in view of Rule 252(5) A.P. Motor Vehicles Rules, 1989, made in pursuance of the power given under the Act. When carrying of passengers in the offending vehicle is not allowed by the Act, question of insurer covering the risk of owner of the goods or an authorized representative of the owner of the goods travelling along with the goods in the offending vehicle does not arise.
5. The next contention of the learned Counsel for the appellant that carrying of passenger in the offending vehicle at best amounts to the driver committing a breach of the terms and conditions of the policy and, so, the insurer has to pay the compensation to the appellants and recover the amount so paid from the owner, cannot be accepted because carrying of passengers in the offending vehicle is contrary to the provisions of the Act and the Rules made thereunder and since the policy issued by second respondent does not even cover the risk of passenger in the offending vehicle. If the insurer covers the risk of some persons and lays down some conditions for its being made liable in respect of those persons, and if the insured violates some of those conditions, then there may be some force in the contention of the learned Counsel for appellants. When the insurer did not undertake to cover the risk of passengers in the offending vehicle, question of its being made liable in respect of the risk of such passenger does not arise.
6. For the above reasons, I find no merits in this appeal and hence the appeal is dismissed. No costs.