Andhra HC (Pre-Telangana)
National Insurance Co. Ltd. vs Manjampalli Mallamma And Ors. on 23 June, 1999
Equivalent citations: 2000(1)ALT9
JUDGMENT A. Gopal Reddy, J.
1. All these appeals arise out of a motor vehicle accident which occurred on 19-3-90 at Gadderegadi village at 2 p.m. Several persons were injured and several persons died due to the accident. Therefore the injured persons and the legal representatives of the deceased filed claim petitions before the Motor Accidents Claims Tribunal-cum District Judge, Adilabad under Section 166 of the Motor Vehicles Act, against the driver of the lorry, owner of the lorry and the Insurance Company with which lorry was insured. After enquiry, the Tribunal passed common award dt. 2-6-93 in OP Nos. 285/91, 287/91, 459/91, 289/91, 286/91 and some other OPs and Award dt. 9-7-93 in OP No. 190/92. Aggrieved by the awards, the Insurance Company (R-3) filed CMA No. 54/94 against OP No. 285/91 which was filed by the wife, sons and daughter of Guruvaiah. CMA No. 58/94 is filed against OP No. 190/92 which was filed by the petitioner for the injuries suffered by him. CMA No. 65/94 is filed against OP No. 287/91 which was filed by the father and mother of the deceased Venkati. CMA No. 66/94 is filed against OP No. 459/91 which was filed by the wife, two daughters and mother of the deceased Kistaiah. CMA No. 68/94 is filed against OP No. 289/91 which was filed by the injured Mallamma. CMA No. 69/94 is filed against OP No. 288/91 which was filed by mother and wife of the deceased Pochaiah. CMA No. 70/94 is filed against OP No. 286/91 which was filed by the father and mother of the deceased Mallesh.
2. As the common questions of law and facts in all these appeals arise, I am disposing them of by this common judgment.
3. The facts not in dipute are: On 19-3-90 some persons were waiting at Somagudem Chowrasta to go to Venkatraopet. By that time, the second respondent was coming in the lorry bearing No. MWP 7051 from Devapur and stopped the vehicle and asked the persons to board the vehicle along with their goods on payment of hire charges. The abovesaid persons paid charges towards goods and board the lorry and kept their goods in the lorry. All the above persons travelled in the lorry as owner of the goods. Because of the rash and negligent driving of the driver of the lorry, the lorry turned turtle and fell into the ditch near Gaddaregadi village at 2 p.m. Due to that accident, Guruvaiah, Venkatai, Kistaiah, Pochaiah and Mallesh and two others died and Hanmanthu and Mallamma received injuries. The police of Ramakrishnapur Police Station registered a case against the driver of the lorry under Sections 304-A, 337 and 338 of the Indian Penal Code and other sections of Motor Vehicles Act. Hence, the petitioner/ petitioners filed the claim petitions, as stated supra, for claiming compensation ranging from Rs. 75,000/- to Rs. 1,50,000/-. The said OPs were contested by the second respondent by filing counters. He contended that the accident did not occur on account of the rash and negligent driving of the driver of the lorry. At the time of entering into the employment, the second respondent had given specific instructions not to carry any passengers in the lorry and not to allow any quantities of goods on the way. At the relevant time, the second respondent specifically instructed and authorised the first respondent to bring the cement load from Devapur. If the driver allowed any person or persons as passengers even with small quantities of goods, he cannot be held liable to pay the compensation.
4. The third respondent-Insurance Company filed separate counters stating that the Insurance Company cannot be held liable to answer any of these claims. It is further contended that as the persons who died in the accident and who suffered injuries were travelling in the lorry as unauthorised passengers, the Insurance Company cannot be held liable to pay compensation.
5. On adjudication of the claims, the Tribunal came to the conclusion that the accident occurred because of the rash and negligent driving of the lorry by its driver. The Tribunal awarded compensation ranging from Rs. 40,000 to Rs. 1,00,000/-which shall be payable by the respondents 1 to 3 jointly and severally.
6. Sri T. Ramulu, learned Standing Counsel for the Insurance Company contended that all the passengers admitted that they have paid fare to the lorry driver and travelled in the lorry along with their personal belongings. Though they have stated that they carried some goods, the same cannot be termed as 'goods' in view of Section 2(13) of the Motor Vehicles Act, 1988, which reads as follows:
"(13) 'goods' included livestock, and anything 'other than equipment ordinarily used with the vehicle' carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle."
Though all the passengers stated that they have taken some rice in the lorry along with their goods such as redgram, cots, clothes, eatables, suitcases for presentation in a nuptial ceremony to Venkataraopet, but in the complaint lodged by P.W.3 with the police in Ex. P-1, there is no mention that they were travelling with goods. P.W.3 who gave a complaint has not stated anything about the goods. At the most they were travelling with their personal belongings. If they carried small quantities of rice with them it cannot be termed as goods. A panchanama prepared by the police at the scene of offence was not filed to substantiate that how many cots and what quantity of rice were taken by them. In the absence of such evidence, it cannot be said that they were travelling along with the goods.
7. Learned Counsel for the appellant nextly contended that even otherwise they were travelling in goods vehicles whether as owners of the goods or passengers on payment of hire, they are not entitled to claim compensation and the Insurance Company is not liable to pay the same. In support of his contention, he relied upon the following decisions of this Court and Hon'ble Supreme Court.
(1) Oriental Fire and General Insurance Company Limited v. B. Sitharam Singh, ;
(2) Oriental Fire and General Insurance Company Limited, Vijayawada v. Ravulapalli Subbamma @ Subbulu, Guntur and Anr., (D.B.);
(3) Mallawwa v. Oriental Insurance Company Limited, ; and (4) D.K. Reddy and Anr. v. Sri Ramula Santhaiah and Ors., .
8. On the other hand, learned Counsel for the respondents /claimants submits that the deceased and the injured persons were travelling in the lorry as owners of the goods. Hence, the lower Tribunal rightly awarded compensation and fixed the liability on the respondents 1 to 3 jointly and severally. He further contended that the decision of the Supreme Court in Mallawwa's case (supra) will not be applicable because the Supreme Court in Para 7 stated that 'in all these cases, the accident had taken place between 1971 and 1985' but in the present case the accident occurred on 19-3-90. He relied upon a judgment of this Hon'ble Court in Divisional Manager, New India Assurance Company Limited v. Tumu Gurava Reddy, and contended that even if the petitioners are not entitled to compensation the Insurance Company shall be liable to pay compensation under Section 140 of the Motor Vehicles Act. He further relied on a judgment of the Division Bench of this Court in New India Assurance Company Ltd. v. D. Satyanarayana, (D.B.) wherein it was held that the Insurance Company is liable to pay the compensation to the owner of the insured vehicle travelling in the vehicle carrying with him goods.
9. This Court in Sitharam Singh's case (1 supra) while defining 'goods' held:
"Luggage means 'baggage belonging to a traveller or passenger' and baggage' means 'the collection of property in packages that a traveller takes with him on a journey; luggage" (shorter Oxford English Dictionary). I am of the view that the articles that were being carried by the deceased i.e., rice, oil etc., would be personal baggage or luggage and therefore, they do not fall within the meaning of the expression 'goods' as defined under the Act. The deceased therefore cannot be said to be "connected to the conveyance of goods". The 'goods' that was being conveyed by the lorry was red metal and the deceased had nothing to do with it. The deceased is therefore not covered by IMT 14 (b) of Ex. B-1 policy. It cannot be said also that he was being carried without "hire or reward". The clear finding of the Tribunal is that the deceased was being carried for hire or reward. On this ground also it has to be held that the deceased was not covered by Ex.B-1 policy".
In view of the above decision, the contention of the learned Counsel for the respondents/claimants that they were travelling along with their goods has no force for the reason that P.W.I stated that the driver of the lorry asked them to board the lorry as they were having samans with them such as redgrain, cot, rice, and eatables. In the cross-examination, he stated that all the passengers together were taking 100 Kgs of rice and they were taking only one cot in the lorry and one bed. P.W.3 who gave complaint Ex.P-1 also stated that they were taking cot,beds, provisions for the nuptial ceremony. The claimant in OP No. 190/92 in the claim statement stated that he travelled in the lorry with two bags of rice, where as in his examination-in-chief he stated that he brought 16 Kgs of rice to Somagudem busstop while waiting for a bus. In view of the same, the contention of the learned Counsel for the respondents/ claimants that they are the owners of the goods cannot be accepted, but they are carrying with them small quantities of rice and personal belongings.
10. A Division Bench of this Court in Ravulapalli Subbamma @ Subbuhu's case (2 supra) while allowing Letter Patents Appeal, held that the Insurance Company cannot be fastened with any liability even in the case of death of passengers who are carried for hire or reward in a lorry which is a goods vehicle, the owner of the lorry is no doubt liable to pay the compensation and the claimants can proceed against him for compensation.
11. The Hon'ble Supreme Court in Mallawwa's case (3 supra) after discussing various provisions and also various decided cases held:
"Therefore it is not required that a policy of insurance should cover risk to the passengers who are not carried for hire or reward. As under Section 95 the risk to a passenger in a vehicle who is not carried for hire or reward is not required to be insured the plea of Counsel for the Insurance Company will have to be accepted and the Insurance Company held not liable under the requirements of the Motor Vehicles Act."
The Apex Court was pleased to exonerate the Insurance Company from its liability to pay the compensation to the claimants in all the aforesaid cases, It is necessary to reproduce the brief facts as mentioned by the Supreme Court in para 3 of its judgment: They are as follows;
"In CA No. 3659 of 1993, the facts are that on 6-11-1990 while Suresh was travelling in a goods carriage vehicle from Belgaum to Bagewadi, he died as it met with an accident. His widow, Mallawwa, therefore, filed a claim petition claiming compensation. The claimant also made an application under Section 140 of the Motor Vehicles Act, 1988 for interim compensation. The Motor Accident Claims Tribunal, Belgaum, awarded Rs. 25,000/- under Section 40 and directed the Insurance Company filed an appeal before the Karnataka High Court against the interim award. The High Court set aside the order holding that under a motor vehicle insurance policy issued by an Insurance Company in conformity with Section 147 of the 1988 Act, the Insurance Company is not liable to pay compensation in respect of death of or bodily injury to any person travelling in a goods carriage as a passenger whether as a hirer or otherwise. It also held that under the insurance policy, there is no extra coverage in respect of passenger like an owner or hirer travelling in the vehicle and, therefore, also, the Insurance Company is not liable to pay the compensation to the claimants either on the ground of fault liability or on the ground of no fault liability. Aggrieved by the judgment of the High Court, the claimant has filed this appeal."
The said appeal was dismissed by the Supreme Court upholding the judgment dt. 3-3-92 of the Karnataka High Court in MFA No. 1867/91. In view of the same, the contention of the learned Counsel for the respondents that the claimants are entitled to compensation from the Insurance Company atleast to an extent of no fault in view of the law laid down by this Court in Gurava Reddy's case (5 supra) cannot be accepted for the simple reason that this Court delivered its judgment on 24-8-98 while interpreting Section 140, whereas the Apex Court delivered its judgment on 27-11-98 exonerating the Insurance Company from its liability to pay the compensation to the claimants. In view of the same, the decision in Gurava Reddy's case (5 supra) cannot be treated as good law in view of the decision of the Supreme Court in Mallawwa case (3 supra).
12. This Hon'ble Court in D.K. Reddy's case (4 supra) following the judgment of the Supreme Court in Mallawwa's case (3 supra) held:
"The position of law thus emerges is that when the vehicle is used for a systematic carrying of passengers, it can be said to be a vehicle in which passengers carried for hire or reward within the meaning of provision (ii) to Section 95 (1) (c) of the Motor Vehicles Act, 1989. The owner of the goods who has hired a goods vehicle, does not become a person travelling on the vehicle in pursuance of a contract of employment and even if he is carrying his goods after hiring the vehicle, does not become a vehicle for carrying passengers for hire or reward and consequently would not come within the purview of Section 95 (1) (b). Proviso to Section 95 (1) (b) does not apply to persons carried in a goods vehicle for hire or reward as it is restricted to a passenger carried in public service vehicle. Insurance Company is not liable for the death of or bodily injury suffered by persons carried for hire or reward in a goods vehicle."
13. In view of the law laid down by the Hon'ble Supreme Court and this Court, the only conclusion that can be drawn is that all the persons travelling in the goods vehicle for hire or reward are unauthorised passengers. Therefore, the Insurance Company is not liable to indemnify the owner of the lorry.
14. In the result, all the appeals are allowed and the Insurance Company is exonerated from its liability to pay the compensation. There shall be no order as to costs in each appeal.