Andhra Pradesh High Court - Amravati
United India Insurance Co. Ltd. vs Kuruvalakshmi 3 Ots on 3 February, 2023
HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
MACMA No.810 OF 2012
JUDGMENT:
1. Aggrieved by the order dated 17.01.2012 in M.V.O.P. No.73 of 2010 passed by the Chairman, Motor Accidents Claims Tribunal- cum- II Additional District Judge, Kurnool at Adoni (for short 'the Tribunal'), the 2nd respondent/United Indian Insurance Company Limited, Kurnool, has preferred this appeal fastening liability on it.
2. The parties will be referred to as arrayed in the M.V.O.P. for convenience.
3. The claimants filed the claim application under Sections 140 and 166 of the Motor Vehicles Act requesting to award compensation of Rs.3,00,000/- for causing the death of Kuruva Hanumanthu (hereinafter referred to as 'deceased'), who died in the Motor Vehicle Accident that occurred on 21.06.2004.
4. The claimant's case is on 21.06.2004, after loading the sand in the tractor and trailer bearing Nos.AP-21-V-3698 and AP-21-B- 0368 (hereinafter referred to as 'the offending vehicle') of the 1 st respondent, which is insured with the 2nd respondent; the driver of the offending vehicle drove it in a rash and negligent manner, 2 MACMA_810_2012 applied sudden breaks to avert the cattle coming across the road at Sambagallu village. As a result, the offending vehicle turned turtle and fell on its right side. Due to this, the deceased and Golla Chinna Purushotham, who was on the sand in the offending vehicle, the offending vehicle fell on the deceased, and the deceased received grievous injuries to his neck and all over the body. While the deceased was being shifted to a Government hospital, he succumbed to the injuries.
5. The 1st respondent remained ex parte.
6. The 2nd respondent filed counter-denying the allegations in the petition, including the age, income of the deceased and the manner of the accident. The offending vehicle was not insured by the 2nd respondent. The offending vehicle's driver did not have a valid driving licence at the time of the accident. The accident occurred due to the careless and negligent attitude of the deceased only. At the time of the accident, the deceased was travelling in the offending vehicle by sitting on the sand, which was loaded in the offending vehicle, which clearly shows his negligence. The offending vehicle is used against the terms and conditions of the policy and M.V.Act. The compensation claimed is highly excessive.
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7. Based on the pleadings, the Tribunal has formulated relevant issues. On behalf of the claimants, PWs.1 to 4 got examined and marked Exs.A.1 to A.5. On behalf of the 2nd respondent, RW.1 got examined and marked Ex.B1 copy of the policy with consent.
8. After evaluating the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle's driver. The deceased died due to injuries sustained in the accident. The said finding of the Tribunal is not dispute, it attained finality. As the facts relating to the accident need not be referred and discussed. The Tribunal granted a compensation amount of Rs.4,50,500/- with proportionate interest, costs @ 7.5% p.a., from the date of petition till the date of realization against the 1st respondent. Still, the Tribunal directed the 2nd respondent to pay the entire compensation amount and later recover the same from the 1st respondent.
9. Learned counsel for the respondents supported the Tribunal's findings and observations.
10. Now the point for determination is, Whether the Tribunal erred in directing the 2nd respondent/insurance company to pay the compensation amount and recover the same from the 1st respondent/owner despite holding that the 2nd 4 MACMA_810_2012 respondent/insurance company is not liable to pay compensation?
Point :
11. From the reading of the grounds of appeal and submissions made on behalf of either side, it can be seen that the following findings are not disputed by either the insurance company or claimants.
a. The deceased and PW.2, who loaded sand in the offending tractor-trailer, travelled in the tractor to go to Adoni to purchase items in the sand. While they were going in the offending vehicle, the accident occurred due to the rash and negligent driving of the offending vehicle's driver; the deceased died due to injuries sustained injuries in the accident.
b. The offending vehicle was validly insured with the 2nd respondent at the time of the accident, and insurance was in force on the date of the accident.
c. The quantum of compensation as awarded by the Tribunal is not disputed by the insurance company despite the filing of the appeal. The claimants have also not questioned the quantum of compensation as awarded by the Tribunal. 5
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12. As seen from the record, the copy of the insurance policy is marked as Ex.B1, and the premium details collected by the insurance company as follows ;
B: T.P-Basic 3,280.00
ADD: Premium for Trailer 510.00
Compulsory PA to Owner-Driver
Amount 2,00,000 100.00
WC to employee 4 100.00
13. It shows the limit of liability as follows ;
"Limit of the amount of the company's liability under Section II.1(ii) in respect of any claim or series of claims arising out of one even up to Rs.7,50,000/-".
14. Based on the premium collected for W.C. to employee 4, it is contended on behalf of the claimants/respondents that the insurance company's liability is extended to four workers. Having collected the premium amount, it is not open to the insurance company to contend that it has no liability to pay the compensation amount to the deceased, who proceeded in the offending vehicle at the time of the accident. It is the appellant's submission that the Tribunal, on appreciation of the evidence on record, has found that the deceased proceeded in the tractor- trailer after unloading the sand to go to sandy to purchase items. 6
MACMA_810_2012 As the claimants did not question the said finding, it is not open to contend that the deceased proceeded in the offending vehicle as a worker.
15. The learned counsel appearing on behalf of the appellant relied on a decision between Branch Manager, United India Insurance Company Limited, Kamareddy, Nizamabad District Vs. Kondakotla Saroja and others 1 , in support of his contention that when no extra premium is paid to cover passengers who travelled in the offending vehicle, the insurance company cannot be held liable to pay compensation for the death of passengers who travelled in an insured vehicle.
A careful reading of the said judgment shows that Ex.A5 policy therein is only an act policy. No extra premium has been paid to cover the passengers who travelled in the jeep.
Whereas, coming to the case facts, Ex.B1 policy shows that it collected a premium amount to cover the risk of four employees.
16. The learned counsel for appearing for the appellant relied on a decision between Yallwwa and others Vs. National Insurance 1 2008(5) ALD 288 (D.B.) 7 MACMA_810_2012 Company Limited and another 2 , wherein it held that "the insurance company would not be liable in cases where passengers of vehicle are not third parties".
17. Simply because after the completion of the unloading of the sand from the offending vehicle, the deceased and others proceeded in the said vehicle to attend to their work, can they be considered employees or not? This Court views that they cannot be branded as gratuitous passengers.
18. However, this Court is inclined to consider treating the deceased as gratuitous passengers.
19. The learned counsel for the respondents contends that the Hon'ble Apex Court held that the discretional power to give appropriate relief under Articles 141 and 142 of the Constitution of India only for the Apex Court, but it is not available even for the Tribunals and High Courts.
20. In a decision between Amritlal Sood vs Kaushalya Devi Thakar3 the Hon'ble Apex Court held that "the comprehensive policy issue covers the risk of gratuitous passengers, i.e., the car's occupants. Therefore, it is clear from the Act itself, the 2 2008 (1) ALD 117 (S.C.) 3 (1998) 3 SCC 744 8 MACMA_810_2012 words of the policy and the decision in Amritlal Sood's case that a comprehensive policy covers the risk of gratuitous passengers to the extent of the liability incurred.
21. A three-Judge Bench of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs Baljit Kaur and Others 4, held that, considering the question of whether the insurance policy in respect of goods vehicle is required to cover the gratuitous passenger in view of the amendment to Section 147 of the Act. The apex court, after considering all the previous decisions, concluded that the Insurance Company was not liable as the risk of an unauthorized passenger in a goods vehicle or gratuitous passengers is not covered under the policy, and there is a breach of the condition of the policy in carrying a passenger in a goods vehicle. Therefore, the owner of the vehicle was held liable to satisfy the decree. However, in paragraph No. 21, the Court was of the opinion that the interest of justice would be sub-served if the Insurance Company was directed to satisfy the award in favour of the claimant, if not already satisfied and recover the same from the owner of the vehicle. The Court also observed that, for such recovery, it would not be necessary for the insurer to file 4 (2004) 2 S.C.C. 1 9 MACMA_810_2012 a separate suit. Still, it may initiate a proceeding before the executing Court as if the dispute between the insurer and the insured was also determined by the Tribunal and the issue was decided against the owner and in favour of the insurer.
22. In a decision between National Insurance Co.Ltd., V. Anjana Shyam5.C.)
23. The Hon'ble Apex court held that "it does not mean that an insurer is not bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent the passengers are permitted to be insured or directed to be insured by the statute and actually covered by the contract. An insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and not for the other passengers involved in the accident in a case of overloading. "Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the 5 2007 CJ 2129 (S 10 MACMA_810_2012 number of passengers covered by insurance policy".
24. The identical issue once again surfaced in the case of United India Insurance Co.Ltd., v. K.M.Poonam 6 , the Hon'ble Apex Court reiterated the relevant provisions of the Motor Vehicles Act and, after taking note of its various earlier decisions, including Baljit Kaur (supra) and Anjana Shyam (supra), has resolved and settled the issue thus: "the liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle n question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. A such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned".
6 2011 ACJ 917 (S.C.) 11 MACMA_810_2012
25. In a decision Shivaraj vs Rajendra 7 , the Apex Court, in the following facts of the case, held that ".....the High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger who was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. In our opinion, the conclusion reached by the High Court, in our opinion, is unexceptionable in the present case.
.....At the same time, however, in the facts of the present case, the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with the liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs Swarna Singh & Others 2004 3 SCC 297 1, Mangla Ram Vs. Oriental Insurance Co. Ltd. 2018 5 SCC 656, Rani & Ors. Vs. 7 2018 Law Suit (SC) 853 12 MACMA_810_2012 National Insurance Co. Ltd. And others 2018 9 Scale 310 including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. 2017 4 SCC 796. In other words, the High Court should have partly allowed the appeal preferred by respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with the liberty to recover the same from the tractor owner".
26. In Shamanna and another Vs. The Divisional Manager The Oriental Insurance Co. Ltd. and Ors.8, the Apex Court held that "to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni and anoth- er.9 which doubted the correctness of the decisions in the exercise of jurisdiction under Article 142 of the Constitution of India directing insurance companies to pay the compen- sation amount even though the insurance company has no liability to pay. In the Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does 8 Civil Appeal No.8144 of 2008 9 (2009) 8 SCC 785 13 MACMA_810_2012 not cover such types of cases and that if the insurance com- pany has no liability to pay at all, then it cannot be com- pelled by order of the Court in the exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. The above reference in the Parvathneni case was disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an ap- propriate case. Since the reference to the larger Bench in the Parvathneni case has been disposed of by keeping the ques- tions of law open to be decided in an appropriate case, pre- sently, the decision in the Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance com- pany to pay the compensation amount awarded to the clai- mants and, after that, recover the same from the owner of the vehicle in question is per the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. 14
MACMA_810_2012 The impugned judgment of the High Court exonerating the insurance company from its liability and directing the clai- mants to recover the compensation from the owner of the vehicle is set aside, and the award passed by the Tribunal is restored".
27. In a decision between Manuara Khatun and others Vs. Rajesh Kr. Singh and others10, it is a case where the Tribunal further held that all the passengers, including the two deceased, were travelling in Tata Sumo for hire and hence they were held to be gratuitous passengers. Due to the said reason, United India Insurance Company Ltd., the insurer of Tata Sumo(offending vehicle), was not liable". In the said facts of the case, the Hon'ble Apex Court held that "in view of the foregoing discussion, we are of the view that the direction to United India Insurance Company (respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing an accident due to negligence of its driver needs to be issued directing them (United India Insurance Company-respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the 10 2017 (2) A.L.D. 65 (S.C.) 15 MACMA_810_2012 offending vehicle (Tata Sumo)-respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul's case quoted supra".
28. By following the principles laid down in the said decisions, this Court views that even if assumed that the deceased travelled in the offending vehicle as gratuitous passengers, the direction given by the Tribunal to pay and recover cannot be found fault with.
29. As seen from the Ex.B1 policy, the owner of the offending vehicle paid an additional premium to cover the liability of four employees. On the other hand, the policy issued under Section 147 of the Motor Vehicles Act is statutory and also called an Act policy. The insurer's liability under this policy is restricted to indemnify the insured in respect of the claim made by the third parties and the owner of the goods or his authorized representative who travels in the goods vehicle along with the goods.
30. According to my opinion, even a worker who travels in the vehicle to load or unload sand may be considered as his authorized representative of the owner of the goods travelling in the offending vehicle as a third party. On that ground, the 16 MACMA_810_2012 Insurance Company is liable to pay compensation, as a statutory liability, to the third party who was travelling as a worker in the offending vehicle. Being his authorized representative of owner carried in the vehicle. So, on that ground, the insurance company cannot deny the liability of workers travelling in the offending vehicle at the time of the accident.
31. Since the evidence on record shows that the deceased was proceeding in the offending vehicle, though it has not contributed to the accident, this Court views that a direction can be given to the insurance company to pay and recover the compensation from the offending vehicle's owner, as there is no seating provided to worker/employee in the trailer.
32. In the light of the law laid down by the Apex Court and High Court, this Court finds that the contention raised by the insurance company that it cannot be fastened with the liability by paying the compensation to the respondents and recovering the same from the owner of the offending vehicle is not sustainable.
33. Given the discussion, as mentioned earlier, I do not find any substance in the appeal, and I do not see any reason to interfere with the impugned order in the present appeal. 17
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34. Accordingly, the appeal, devoid of merits, is dismissed without costs by confirming the order dt.17.01.2012 passed by the Tribunal in MVOP.No.73 of 2010.
35. Miscellaneous petitions pending, if any, in this appeal shall stand closed.
------------------------------------- T. MALLIKARJUNA RAO, J Dt.03.02.2023 KGM/SAK