Andhra HC (Pre-Telangana)
United India Insurance Co., Ltd., ... vs S.K. Raheemunnisa And Others on 30 September, 1999
Equivalent citations: I(2000)ACC491, 2002ACJ60, 2000(1)ALD125, 1999(6)ALT542, AIR 2000 (NOC) 16 (AP), 2000 A I H C 508, (2002) 1 ACJ 60, (1999) 6 ANDH LT 542, (2000) 1 ANDHLD 125, (2000) 1 ACC 491, (2000) 1 TAC 467, (2000) 2 ANDHWR 84
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
JUDGMENT
1. This appeal is directed against the judgment and decree dated 8-7-1992 in OP No.429 of 1991 on the file of the Chairman (Addl. District Judge), Motor Accident Claims Tribunal, Cuddapah.
2. The brief facts leading to the filing of the said OF are that on 24-7-1991 at about 4-00 p.m. the deceased, Amjad Pasha, driver of the lorry bearing No.AP-3/T-9090 had taken the lorry to the Indian Cement Factory Limited, Chilamakur and kept the lorry in the lorry stand infront of the factory and while he was sleeping infront of his lorry, at about 10-00 p.m a lorry bearing No.APG-7569 belonging to the first respondent, which was driven in a rash and negligent manner, ran over the deceased and caused his death. The claimants are the widow of the deceased S.K. Raheemunnisa, 2nd and 3rd claimants Naywna and A.Basha are daughter and son and Smt. Kairunbi the mother of the deceased. The claimant stated that the deceased was their sole bread winner and was aged about 30 years and hale and healthy at the time of accident.
Therefore, they claimed a sum of Rs.2,25,000/- by way of compensation for the loss of dependency, estate and non-pecuniary damages.
3. The owner of the vehicle, first respondent remained ex parte and the second respondent-Insurer of the vehicle involved in the accident filed their counter stating that the accident was occurred at the lorry stand of Indian Cement Factory Limited, which is a private place and so the Insurance Company is not liable to pay the compensation. It is further contended that the accident took place due to the negligence of the deceased, that even otherwise, the claimants have to prove that the driver of the lorry had caused the accident and that he had a valid driving licence. The vehicle involved in the accident was insured with this respondent and the policy was in force. They further stated that the claim made by the claimants is exorbitant and excessive and liable to be rejected.
4. Based on the facts and circumstances of the case, the Tribunal framed as many as seven issues and marked Exs.A1 to A6 and examined PW1 the widow of the deceased and PW2, the cleaner of the lorry on which the deceased was working as driver. None were examined on behalf of the respondents and no documents were also marked.
5. Based on the oral and documentary evidence and considering the contention of the respondents-insurance company that the accident took place within the premises of the Indian Cement Factory, which is a private place and as such the company is not liable to pay the compensation and after scrutiny of the judgment in Life Insurance Corporation of India v. Karthvani and others, AIR 1976 Orrisa21, United India Insurance Company Limited v. Roop Kanwar and others, 1991 ACJ 74 (Raj.) and Seshidra Devi v. Rama Narayana Satya Narayana and others, 1991 ACJ 695 (MP), the Tribunal held that the insurance company is not liable to pay the compensation; as the right of admission is reserved by the owner of the factory and after taking permission one has to enter into the premises of the factory, as it was not a public place defined under Section 2(24) of the Motor Vehicles Act, 1939.
6. After scrutiny of the above said judgments and appreciation of the arguments of the learned Counsel for the second respondent, the Tribunal came to the conclusion that the accident is said to have taken place in the lorry stand in front of the factory, so the judgments referred to above are applicable to the facts and circumstances of the present case. The Tribunal further observed that PW2 cleaner stated that it was 20 yards away from the factory gate. In the inquest report, Ex.A2, it is mentioned that the accident took place infront of the factory in the place where the lorries are stationed, i.e., lorry stand. Therefore, as it was a lorry stand, every lorry has a right to access to the place. In other words, the lorry drivers and lorry cleaners have right to access and so it is a public place and the Insurance Company second respondent is liable to pay compensation.
7. Against that finding of the Tribunal below, the Insurance Company has filed the present appeal.
8. The learned Counsel for the appellant reiterated the stand taken by the insurance company before the Tribunal below basing on the judgment Oriental Fire and General Insurance Company Limited v. Rabari Gandu Punja and others, 1982 ACJ 202, wherein the learned Judge of Gujarat High Court held that when the accident was occurred inside the premises of factory the members of public cannot go as of right inside the factory premises. Therefore, the insurance company would not be statutorily liable to answer the claim of the claimants, as the accident has not been caused in a public place. In that case, the accident was caused by the goods truck bearing No.GTE-8747 in the compound of Western India Tiles Company, Nakansar. The said truck while inside the compound of the tiles factory and being taken in reverse ran over a manual labourer presumably an employee of the tiles factory who was engaged in loading and unloading the tiles in the said truck. Therefore, considering it as not a public place, as defined under Section 2(24) of the Act of 1939, the learned Judge held that the Company is not liable to pay the compensation on the ground that the accident was not occurred in a public place.
9. In answer to the contention of the learned Counsel for the appellant, the learned Counsel for the respondent claimants has relied on a decision United India Insurance Company Limited v. Lakshmi, 1997 ACJ 489, the facts of which are that while the deceased Krishnan was working in paddy field, he was knocked down by a tractor bearing No.KLM 1776 belonging to the respondent No.8 and died after forty days of the accident. The respondents therein contended that the insurance company is not liable to pay compensation, as the accident was occurred in a private paddy field and not in a public place. On a consideration of the facts and circumstances of the case and following the Full Bench judgment of Bombay High Court in Pandurang Chimaji Agale v. New India Life Insurance Company Limited, 1998 ACJ 674, the Bench held that according to Section 2(24), a public place means a road, street, way or other place, whether a throughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage.
10. Therefore, what is required to be examined is whether the expression 'public place' will cover all places including private properties where the members of public have an access. The examination of this question was found to be necessary since what is to be adjudicated is the right of victims of motor accidents under Chapter XII of the Act of 1988. The Bench further ruled that a place is a public place though it is a private property when it is shown that the public are in the habit of resorting to it and no one is prevented therefrom so resorting to it. In this context, the Bench considered the Full Bench judgment of Bombay High Court in Pandurcmg Chimaji Agale's case (supra). That was a case where the accident involved was on a private road in the compound of an industrial establishment where hundreds of visitors were regulated by passes. The Tribunal held that it is not a public place and the insurer is not liable to pay compensation. The Bombay High Court reversed the decision of the Tribunal and in Para 14 of the judgment, it is held thus:
".. The survey of the aforesaid decision shows that the Courts are not unanimous and there is a divergence of opinion with regard to the definition of 'public place' in Section 2(24) of the Act. For the reasons which we have discussed earlier, we prefer the view taken by the latter authorities and hold that at least for the purpose of Chapter VIII of the Act expression 'public place' will cover all places including those of private ownership where members of the public have an access whether free or controlled in any manner whatsoever..."
In yet another case, the Bombay High Court in State of Maharashtra v. Gulabi Sadhu and others, 1995 ACJ 965, the facts of which are that Sadhu Gupta met with an accident on 13th road, Aarey Colony, Goregaon on 1-9-1974 at about 10-30 a.m as a result of dash given to him by a tractor bearing No.MRX-3644 belonging to the appellant therein and driven by its employees. Sadhu Gupta was walking by the side of the road, the tractor belonging to the appellant therein came from behind and dashed against the deceased resulting in fatal injuries to the deceased. The tractor was owned by Maharashtra State. Their contention was that the accident was occurred in a private road of Aarey Milk Colony and the deceased was a trespasser and therefore, Government was not liable to pay the compensation. Considering the contention of the respondents in that case, the learned Judge held that even if a person is passing through a private property the driver of the vehicle has got to be mindful of the persons walking on the road provided in the said property and if negligence can be attributed to the driver of the vehicle and it is due to the driver's negligence that the accident has happened, the driver as well as the owner of the vehicle would be responsible for paying compensation to the victim of the accident.
11. In the present case, according to the claimants, the accident was occurred when the deceased kept his vehicle in the lorry stand of Indian Cement Factory, Chilamakur and while he was sleeping infront of the lorry, another lorry bearing No.APG-7569 which was driven in a rash and negligent manner came without blowing horn ran over the head of the deceased, crushing him to death.
12. As seen from the record, that the accident was occurred within the premises of the cement factory, but in the lorry stand which was a place provided by the factory for stationing the lorries. Considering the fact that the accident was occurred in the premises of the Cement Factory and the right of admission is restricted through a pass by the owners of the Factory; but the public have a right of access to purchase cement and to load and unload it, as held by the Full Bench of the Bombay High Court in Pandurang Chimaji Agale 's case, which was followed by the Kerala High Court in Lakshmi's case (supra), I hold that the driver of the lorry bearing No.APG-7568 should have been mindful of the deceased who was sleeping in front of his lorry in the lorry stand, i.e., the driver should be mindful of the persons walking on the road provided in the private property. Therefore, applying the principles laid down in the above judgments, I hold that though the accident was occurred in the premises of cement factory, more particularly at the place provided for stationing the lorries, the public has a right to access to the premises and therefore, comes within the definition of Section 2(34) of the 1988 Act for the purpose of Chapter XI. Therefore, the insurance company is liable to indemnify the claimant in respect of the compensation awarded by the Tribunal for the untimely death of the sole bread winner of their family.
13. In view of my findings above that the accident was occurred within the premises of Indian Cement Factory and falls within the ambit of Section 2(34) of the 1939 Act and the public has the right of access either free or controlled by its management, the decisions relied on by the learned Counsel for the appellant in Oriental Fire and General Insurance Company Limited v. Rabari Gandu Punja and others, 1982 ACJ 202 (supra), need not be referred to and entertained.
14. In the result, the appeal fails and is accordingly dismissed confirming the award of the Tribunal below. No costs.
15. In view of my findings, the cross objections also fail and they are accordingly dismissed.