Andhra HC (Pre-Telangana)
New India Assurance Company Limited, ... vs Mamidi Mallamma And Others on 24 April, 2001
Equivalent citations: II(2001)ACC577, 2002ACJ1461, 2001(4)ALD8, 2001(4)ALT554, 2001 A I H C 4140, (2002) 3 ACJ 1461, (2001) 1 ANDHWR 292, (2001) 2 TAC 708, (2001) 4 ANDHLD 8, (2001) 2 ACC 577, (2001) 4 ANDH LT 554
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER
1. This appeal is filed by the New India Assurance Company Limited, Karimnagar against the order and decree in OP 331 of 1994 or. the file of the Motor Accidents Claims Tribunal, Karimnagar.
2. The facts of the case are that the OP was filed by the first respondent-herein/claimant claiming a compensation of Rs.1,00,000/- due to the injuries sustained by him in a motor vehicle accident on 25-12-1993, while he was travelling in a trailer No.APO 4860 which belongs to the 2nd respondent and which was insured with the 3rd respondent/appellant herein. The said trailer was attached to a tractor bearing No.ABP 8892. While the tractor was going towards Bommanapali sivaru with morum load, because of the rash and negligent driving of the driver of the tractor, the trailer which is attached to the tractor severed and the 1st respondent/driver of the tractor lost his control and the hook link between the tractor and trailer got detached and the tractor as well as the trailer turned turtle and the claimant fell down from the trailer and sustained grievous injuries on the upper portion of his both things. Aggrieved by the said accident, the claimant filed the OP.
3. Before the tribunal the driver-cum-owner of the tractor ABP 8892 and the owner of the trailer APO 4860 filed common counter-affidavit contending that there was no rash and negligent driving of the tractor by its driver, and the trailer turned turtle as the hook between the tractor and trailer got detached.
4. The appellant-insurance company, being the 3rd respondent in the OP, filed counter-affidavit denying the allegations of the claimant in the OP., contending that the owners of the tractor and trailer are different and the claimant is an unauthorised passenger travelling in the trailer and the insurance company is not liable to pay compensation.
5. On the basis of the pleading, the Tribunal framed the following issues for trial:
1. Whether the accident took place due to the rash and negligent driving of the vehicle bearing No.ABP 8892 by its driver?
2. Whether the vehicle in question got valid insurance with the third respondent?
3. Whether the petitioner(s) are entitled to compensation, and if so, to what amount and from whom?
4. To What relief?
6. Considering the evidence on record, the Tribunal held that the accident has taken place because of the rash and negligent driving of the first respondent/driver of the tractor. While fixing liability against the appellant as well as respondents 1 and 2 in the OP, the learned Judge has taken a view that even though the tractor is not insured with the Present appellant/insurance company the trailer is insured with the appellant/insurance company on the date of accident and held that in view of the insurance policy both the owners, i.e., the driver-cum-owner of the tractor and the owner of the trailer as well as the insurance company are joint by and severally liable to pay compensation, basing on the evidence of PW4 and Ex.P52, and awarded a compensation of Rs.71,000/-.
7. Aggrieved by the said order, the present appeal is filed by the insurance company.
8. It is the contention of the Counsel for Appellant/insurance Company that the accident is caused because of the rash and negligent driving of the driver of the tractor which was not insured with the present Appellant/insurance Company. So the insurance company is not liable to pay compensation. It is further contended that as per the insurance policy even though the trailer is insured with the present appellant the tractor was not insured with the appellant and so the appellant is not liable to pay compensation to the claimant. In support of this contention, he relied on the judgment of a learned single Judge of this Court in Oriental Insurance Company Limited v. J. Kotiratnamma, .
9. On behalf of the respondents, it is contended by the Counsel that it is the admitted case of the present appellant that the trailer was insured with them as per Ex.B1 insurance policy and even though the tractor owner is different when the trailer is covered by the insurance policy, the present appellant is liable because the accident has arisen due to the use of the trailer.
10. The claimant as a coolie at the time of accident travelled in the trailer which was insured with the present appellant and because of the rash and negligent driving of the driver of the tractor the hook/link between the tractor and trailer got detached and the trailer turned turtle. At the time of the accident, the trailer is moving independently and because of the detachment the trailer turned turtle. The accident has arisen out of the use of the trailer which was insured with the present appellant/insurance company and the claimant/injured is admittedly, as per the evidence on record, was travelling at the time of the accident as a coolie in the trailer.
11. Even if we accept the argument of the appellant/insurance company that the claimant is an unauthorised passenger travelling in the goods vehicle/trailer, as per the judgment of the Hon'ble Supreme Court in New India Assurance Company v. Shri Satpal Singh, , the claimant is entitled to compensation from both the owners as well as the insurance company. There is no dispute that at the time of the accident, the injured was travelling in the trailer which was insured with the present appellant. Before the Tribunal, the owner of the tractor as well as the owner of the trailer and the insurance company with which the trailer is insured are made parties in the OP. So, the learned Judge has rightly fixed the liability against all the respondents in the OP to pay compensation.
12. In the decision in Oriental Insurance Company Limited v. J. Kotiratnamma, 1996(6) ALT 745, the facts are that the deceased persons, who were travelling in the trailer, met with an accident and died. In that case the trailer was not insured. Only the tractor was insured. Relying upon the judgment of Karnataka High Court in Oriental Insurance Company Limited v. N. Chandrashekara, 1997 ACJ 512, the learned Judge of this Court in Kotiratnamma's case (supra) held:
"In view of the foregoing discussion, it must be held that once the trailer which is not insured with the Insurance Company and the deceased who were travelling in the said trailer met with an accident and died, the Insurance Company to whom the tractor is insured is not liable as the accident would not be caused by tractor but a goods vehicle, i.e., trailer. If both the tractor and trailer are insured, the insurer would be liable to indemnify the owner against the claims arising out of use of tractor and trailer. This view of mine is in conformity with the other statutory provisions which require the trailer to be insured under Sections 146, 147 and 148 of the Act. Admittedly under Ex.B1 policy, the Insurance Company has not undertook any liability for the trailer attached to the tractor. Therefore, the Insurance Company cannot be fastened with any liability".
Ultimately it was held in that decision that until and unless both the tractor and trailer are insured, the claimants are not entitled to any compensation. The facts of that case are entirely different from that of the case on hand. In the present case, the appellant/insurance company insured the trailer in which the claimant injured travelled. The accident has arisen while the said trailer was in use at a public place.
13. So, the reasoning given by the learned Judge in that case is that the trailer is not insured in which the deceased were travelling and so the insurance company cannot be made liable to pay compensation. That is not the case here. So, that decision in Kotiratnamma's case has no application to the facts of this case. In this case admittedly the trailer which is an independent vehicle as per the definition of 'motor vehicle' is insured with the present appellant/ insurance company, and the insurance company as well as the owner of the trailer and the tractor driver are jointly and severally liable to pay compensation.
14. According to Section 2(28) of the Motor Vehicles Act, 1988 "motor vehicle" or "vehicle" means -- "any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding (twenty-five cubic centimeters)." Therefore, the trailer is an independent vehicle even though it is attached to another vehicle.
15. Admittedly, in this case, as per Ex.B1 insurance policy, the trailer was insured with the 3rd respondent-insurance company. Section 147 of the Motor Vehicles Act, 1988 deals with requirements of policies and limits of liability. Sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the said Act reads thus:
"147. Requirements of policies and limits of liability :--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer; and
(b) insurers the person or classes of persons specified in the policy to the extent specified in sub-section (2),--
(i) against any liability which may be incurred by him in respect of the death or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) .....".
16. So, admittedly, in this case, the trailer is a 'motor vehicle' within the meaning of the definition given under Section 2 (28) of the Motor Vehicles Act and it was used in a public place.
17. Even though a contention is raised by the Counsel for appellant that the quantum of compensation granted is on the higher side, it is not open to the appellant/insurance company to raise such a contention. As per Section 170 of the Motor Vehicles Act, the insurance company cannot maintain any appeal questioning the quantum of compensation as per the judgment of the Supreme Court in Shankariah v. United India Insurance Company Limited, 1998 (3) SCC 14.
18. For the above reasons, there are no merits in this appeal. The appeal is dismissed. No costs.