Andhra HC (Pre-Telangana)
M/S Oriental Insurance Co.Ltd., Rep.By ... vs Kolusu Adilaxmi & Others on 14 November, 2014
Author: A. Shankar Narayana
Bench: A. Shankar Narayana
THE HONOURABLE SRI JUSTICE A. SHANKAR NARAYANA
CIVIL MISCELLANEOUS APPEAL No.2824 OF 2004
14-11-2014
M/s Oriental Insurance Co.Ltd., Rep.by its Divisional Manager, Divisional
Office at Visakhapatnam .. Appellant
Kolusu Adilaxmi & others.. Respondents
Counsel for the Appellant :Sri M. Satish Reddy
Counsel for respondent No.5:Sri K. Vinaya Kumar
<GIST:
> HEAD NOTE:
? CASES REFERRED:
1. 2000 (1) ALD 50 (SC)
2. 2002 ACJ 602
3. (2003) 1 ALD 18 (SC)
4. 2005 ACJ 721
5. 2004 ACJ 2094 (SC)
6. 2004 ACJ 1903 (SC)
7. 2004 ACJ 1909 (SC)
HONBLE SRI JUSTICE A. SHANKAR NARAYANA
CIVIL MISCELLANEOUS APPEAL No.2824 OF 2004
JUDGMENT:
Respondent No.2 M/s Oriental Insurance Company Limited is the appellant. Aggrieved by the award of Rs.2,13,000/- as compensation to the petitioners, who are legal representatives of one Kolusu Bangarappadu, who died in a road accident, by order and decree, dated 04-06-2002, in M.O.P. No.1810 of 1999 passed by the learned Chairman, Motor Accidents Claims Tribunal cum VI Additional District Judge, Visakhapatnam (for short the Tribunal), preferred the instant appeal.
2. The appellant herein is respondent No.2 in the aforesaid M.O.P. before the Tribunal, while respondent Nos.1 to 4 are petitioners and respondent No.5, who is owner of lorry bearing registration No.AP 31V 5568, is respondent No.1.
3. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in MVOP before the Tribunal.
4. The fact-situation occurring in the instant case is that on 26-09-1999 at about 8.30 A.M., one Bangarappadu along with other labourers was returning from Anandapuram Junction to Visakhapatnam with a sand load on lorry bearing registration No.AP 31V 5568 and, when it reached Gambiram, due to rash and negligent driving of driver of the lorry, it hit the Scooter bearing registration No.AP 31G 8350 coming in opposite direction and turned upside down resulting the death of Bangarappadu instantly as he was covered by stones. Station House Officer, Anandapuram Police Station, registered a case in Crime No.134 of 1999 against the driver of lorry. The petitioners, as the dependants and legal heirs of the deceased Kolusu Bangarappadu, contended that the deceased was aged 30 years, earning Rs.150/- per day, and since respondent No.1 is the owner of lorry and respondent No.2 is its insurer, both of them, are jointly and severally liable to pay Rs.4,00,000/- as compensation claimed under Section 166 of Motor Vehicles Act, 1988 (for short the Act) read with Rule 455 of Andhra Pradesh Motor Vehicles Rules, 1989.
5. Respondent No.1 was set ex parte before the Tribunal.
6. Respondent No.2 Insurance Company contested the claim requiring the petitioners to prove the material allegations mentioned in the petition. It is contended that the deceased never worked as labourer on the offending vehicle, and that the deceased was a gratuitous passenger, and even required them to prove that the driver was possessing valid driving license and it was having valid permit.
i) The Insurance Company also filed additional written statement, contending that the report of the Investigator appointed by it revealed that the deceased was travelling in the lorry as gratuitous passenger and the offending vehicle was a goods vehicle and, therefore, it attracts violation of Section 123(2) of the Act and, therefore, the Insurance Company is not liable to pay any compensation.
7. On the basis of above pleadings, the Tribunal framed three issues about responsibility for the accident. Before the Tribunal, during inquiry, on behalf of petitioners, petitioner No.1 examined herself as PW.1, besides examining one L. Sayasappadu, an eye-witness to the occurrence and Exs.A-1 to A-3, which are attested Photostat copies of first information report; postmortem certificate and insurance policy, respectively, were marked to substantiate their claim. On behalf of respondent No.2, an official from its branch office Sri Ch. V. Viswanathm, was examined and Exs.B-1 and B-2, which are copies of insurance policy and C.Book, respectively, were marked, to substantiate its defence that the deceased was a gratuitous passenger travelling in the goods vehicle.
8. The Tribunal, on appreciation of evidence of PW.2, an eye-witness to the occurrence, who incidentally happens to be the complainant under Ex.A-1, first information report, recorded the finding on issue No.1 that only due to rash and negligent driving of the lorry driver which belonged to respondent No.1, the accident had occurred and, accordingly, held it in favour of the petitioners.
9. On issue No.2, in determining the compensation to which the petitioners are entitled, and if so, against which of the respondents, the Tribunal believed the evidence of RW.1 and recorded the finding that the deceased was not working on the offending vehicle as labourer and he was not working under respondent No.1, since the evidence of RW.1 on that aspect of the case, stood un-rebutted. The Tribunal also disbelieved the stand of petitioners that the deceased was earning Rs.150/- per day on the ground that they failed to prove that the deceased was working under respondent No.1 and, therefore, resorted to Second Schedule to Section 163-A of the Act and taken the income of deceased at Rs.15,000/- per annum, deducted 1/3rd there-from towards his personal expenses and assessed the annual loss of dependency at Rs.10,000/-, and since the deceased was 30 years old, applying multiplier 18 as provided under Second Schedule arrived at Rs.1,80,000/- towards loss of dependency. As regards liability of Insurance Company, the Tribunal placing reliance on the decision of Honble Supreme Court in New India Assurance Company Ltd., v. Satpal Singh & others , fastened liability on respondent No.2. The Tribunal also placed reliance on the decision of this Court in Oriental Insurance Co.Ltd. v. B. Lakshman and others , which was rendered placing reliance on the decision in Satpal Singhs Case (Supra 1), thus, the Tribunal held that respondent Nos.1 and 2 are jointly and severally liable to pay compensation to the petitioners.
10. It is that order which is challenged in the instant appeal as to liability fastened on Insurance Company, contending in the grounds of appeal that the Tribunal, somehow, overlooked the clear violation of the conditions of policy under Ex.A-3 as well as the provisions of the Act. It is also contended that as per the decision of Honble Supreme Court in New India Assurance Co.Ltd., v. V. Asha Rani & others , the Insurance Company is not liable to pay compensation in case of violation of conditions of policy under the provisions of the Act. It is also contended that the Tribunal invoked the provisions of Section 163-A of the Act, though, the claim was laid under Section 166 of the Act.
11. Heard Sri M. Satish Reddy, learned Standing Counsel for the appellant, and Sri K. Vinaya Kumar, learned counsel for respondent No.5. No representation on behalf of respondent Nos.1 to 4, despite affording chances on 21-10-2014 and 07-11-2014, respectively, though, Sri S. Mujib Kumar, learned counsel, made appearance.
12. The learned counsel for the appellant submits that the Tribunal has recorded a definite finding that the deceased was a gratuitous passenger and not a labourer under the employment of respondent No.1. In view of the decisions of the Honble Supreme Court in V. Asharanis Case (Supra 3) and in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. , the appellant is not liable to pay compensation in view of violation of terms and conditions of the policy. That has been the main argument advanced by the learned counsel for the appellant. Whereas, the learned counsel for respondent No.5 supported the order of the Tribunal.
13. Now, the point that arises for consideration in the instant case is, whether respondent No.2 appellant is liable to pay compensation to the petitioners?
14. In view of decision of the Honble Supreme Court in V. Asharanis Case (Supra 3), the decision rendered in Satpal Singhs Case (Supra 1) is overruled. The fact-situation in Bommithi Subbhayammas Case (Supra 4), reflects that the deceased Bommithi Kondal Rao was travelling in a lorry which met with accident resulting in death of the said B. Kondal Rao. The Tribunal finding that the deceased was a gratuitous passenger exonerated the Insurance Company. When the same was questioned before this Court, the finding of the Tribunal was reversed on the basis of the decision of the Honble Supreme Court in Satpal Singhs Case (Supra 1). The Insurance Company carried the matter to the Honble Supreme Court by Special Leave Petition. The Honble Supreme Court held that the Insurance Company is not liable to pay compensation with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of Insurance Company entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people, in view of the authoritative pronouncements of the Honble Supreme Court in National Insurance Co. Ltd. V. Challa Bharathamma , Pramod Kumar Agrawal v. Mushtari Begum , and National Insurance Co.Ltd. v. V. Chinnamma . The Honble Supreme Court extracted the observations made in V. Asha Ranis Case (Supra 3) thus:
(26) In view of the changes in the relevant provisions in the 1988 Act vis--vis the 1939 Act, we are of the opinion that the meaning of the words any person must also be attributed having regard to the context in which they have been used, i.e., a third party. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods vehicle, the insurers would not be liable therefore.
15. The Tribunal has recorded a definite finding that the deceased was a gratuitous passenger on appreciation of evidence. Since that finding recorded is well reasoned and well appreciated, it does not suffer from any perversity and, therefore, the Insurance Company is not liable to pay compensation.
16. In the result, appeal is allowed, setting aside the order and decree, dated 04-06-2002, in M.O.P. No.1810 of 1999 passed by the Tribunal to the extent of fastening liability on respondent No.2 appellant herein. There shall be no order as to costs.
17. As a sequel thereto, miscellaneous applications, if any, pending in the appeal, stand disposed of.
____________________ A. SHANKAR NARAYANA, J November 14, 2014.