Andhra HC (Pre-Telangana)
Unknown vs Counsel For on 10 July, 2014
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HONBLE SRI JUSTICE C. PRAVEEN KUMAR
M.A.C.M.A. No.3089 OF 2007
10-07-2014
The New India Assurance Co. Ltd., Kadapa branch, Rep.by its Divisional
Manager..... APPELLANT/R-2
1.Koduru Venkata Subbamma and 3 others ..RESPONDENTS/RESPONDENTS
Counsel for Appellant:M/s. Kalpana Ekbote
Counsel for Respondents :Sri J.Srinivasa Rao
Sri D.Kodandarami Reddy
<GIST :
>HEAD NOTE :
? Cases referred :
2007 ACJ 1909
2008 ACJ 1149
2003 ACJ 1 (SC)
2000 ACJ 1(SC)
HONBLE SRI JUSTICE C. PRAVEEN KUMAR
M.A.C.M.A.No.3089 of 2007
JUDGMENT:
Challenging the order and decree dated 12.01.2007 passed in M.V.O.P.No.726 of 2004 on the file of the III Additional District Judge, Kadapa at Rajampet, the New India Assurance Company Limited filed the present appeal under Section 173 of the Motor Vehicles Act, 1988 (for short the Act).
For the sake of convenience, the parties will hereinafter be referred to as arrayed in O.P. The facts in issue are as under:
The claimants, who are the wife and minor sons of one Koduru Gopaiah, filed a petition under Section 163-A of the Act, claiming compensation of Rs.4,00,000/- for the death of one Koduru Gopaiah in a road accident that occurred on 30.06.2003. It is stated that on the fateful day at about 9.00 p.m. while the deceased was traveling in a tractor-trailer loaded with sunflower seed bags in the trailer and when the said vehicle was returning to Penagalur, the driver of the said tractor drove the same in a rash and negligent manner without taking any care and caution. As a result of which, he lost control over the vehicle near Singatuamala Tank Bridge resulting in vehicle turning turtle. The deceased fell down and consequently the sun flower seed bags fell on the deceased leading to his instantaneous death. It is stated that the deceased was aged about 35 years, earning Rs.4,000/- per month and due to his untimely death the entire family put to lot of misery.
The first respondent, who is the owner of the vehicle, filed the written statement admitting the accident but denied the other averments in the petition. It is alleged that the driver of the tractor drove the same slowly with limited speed and when the vehicle took a turn, while crossing the road, the deceased due to his negligence fell down and died. According to him, there was no fault on the part of the driver of the tractor-trailer; that the tractor-trailer is covered under the policy issued by the second respondent and as the same was in force at the time of the accident, the insurance company alone is liable to pay compensation to the claimants.
The second respondent filed its written statement, alleging that the petition filed by the petitioners is not maintainable either in law or on facts, and the petitioners/claimants are put to strict proof of the allegations including the manner in which the accident took place. It is stated that the policy was issued by the second respondent to the vehicle which is meant for use of agriculture purpose and as the accident took place when the vehicle was being used as a commercial vehicle, the insurance company cannot be made liable. It is stated that since the owner of the vehicle violated the terms and conditions of the policy and as no extra premium was paid covering the risk of the coolies, the owner of the vehicle alone is liable to pay compensation. In any event it is stated that the claim made is excessive and exorbitant.
On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the death of the deceased namely Koduru Gopaiah S/o. Penchalaiah occurred on 30.06.2003 at 9.00 p.m. in a motor vehicle accident due to rash and negligent driving of the Tractor-Trailer bearing No. AP-04-T-9646 by its driver, owned by respondent No.1 and insured with respondent No.2?
2. Whether the petitioners are entitled for compensation, if so to what amount and from whom?
3. To what relief?
In support of their claim, the claimant No.1 examined herself as PW.1 and an eye witness as PW.2 and got marked Exs.A1 to A7. The respondents examined RWs.1 and 2 and got marked Exs.B1 to B4.
After analyzing the evidence available on record, the tribunal held that the accident took place due to rash and negligent driving of the driver of the Tractor-Trailer and that the claimants were entitled to compensation of Rs.2,04,000/- to be paid jointly and severally by both the respondents. Challenging the same, the present appeal has been filed, by the Insurance company.
The learned counsel for the appellant mainly submits that the insurance company is not liable to indemnify the owner of the vehicle as the policy does not cover the risk of coolies, who were travelling in a tractor-trailer and as the vehicle was being used as a commercial vehicle, though it was meant for agriculture purpose. In the absence of any additional premium being paid, covering the risk of the coolies and the policy being an Act policy, which does not cover the risk of any labourers, the insurance company is not liable to pay the compensation.
On the other hand, the learned counsel for the claimants would submit that though the policy is an Act policy, still it covers the risk of coolies traveling on the tractor as the said vehicle was used only for agriculture purpose. According to him, the sunflower seeds were being taken to the agriculture land for the purpose of sowing and therefore, transporting of seeds to the land cannot be termed to be commercial in nature. It is further submitted that the deceased did not die due a fall from the vehicle and his death was due to falling of sunflower seed bags on him after the fall of the deceased from the vehicle. According to the learned counsel, the deceased has to be treated as third party.
The short point that arises for consideration is whether the accident took place due to rash and negligent driving by the driver of the Tractor-Trailer and if so whether the claimants are entitled to any compensation.
PW1 in her evidence stated that on the fateful day the deceased and others, who were working as coolies under the first respondents tractor-trailer bearing No. AP-04-T-9646, went to Pula Puttur of Rajampet Mandal in the vehicle of the first respondent for loading the sunflower seeds. After loading the same, the deceased along with others boarded the said tractor and were returning to Penagalur for unloading the sunflower seeds. It is stated that when the vehicle reached Singanamala Tank Bridge, the driver of the tractor drove the same in a rash and negligent manner and lost control over the vehicle, resulting the vehicle turning turtle. The deceased fell down and thereafter the sunflower seed bags fell on him leading to his death. In respect of the above incident, a case in Crime No.24 of 2003 of Penagalur Police Station came to be registered against the driver of the tractor-trailer for the offence punishable under Sections 337, 338 and 304-A IPC. According to her, the deceased was aged about 35 years and earning Rs.4,000/- per month. She got marked Exs.A1 to A7.
PW1 was cross examined at length, but nothing useful was elicited to discredit her testimony. However, she admits that she was not an eye witness to the accident. To a suggestion that the policy issued by the second respondent to the crime vehicle was only for agriculture purpose and that the said tractor was used for carrying sunflower seed bags, which is a commercial purpose, was denied by her. To a suggestion that the first respondent, owner of the vehicle, did not pay any premium covering the risk of the coolies was also denied by PW.1. She also denied a suggestion that the deceased was only earning Rs.30/- per day as coolie and not Rs.4,000/- per month as stated in the petition.
PW2, who is an eye witness to the incident, deposed that on the date of accident himself along with deceased and others went to Pula Puttur of Rajampeta Mandal in the crime vehicle for loading sunflower bags under the instructions of the first respondent. After loading the same in the trailer they were returning to Penagalur. At that time the accident took place due to the rash and negligent driving of the driver of the vehicle. It is also deposed by PW2 that the driver lost control over the vehicle resulting in vehicle turning turtle. It was specifically stated by him that sunflower seed bags fell on the deceased leading to his death while other coolies received injuries. PW2 was cross examined at length, but nothing useful was elicited to discredit his testimony. In fact, it was elicited from him that he was traveling in the Tractor at the time of the accident along with sunflower seed bags. It was also elicited that the deceased and two others were sitting on the sunflower seed bags in the trailer. To a suggestion that since the deceased was sitting on the sunflower seed bags load, he himself fell down and died was denied. Therefore, the evidence of PWs.1 and 2 coupled with Ex.A1-First Information Report and Ex.A5-charge sheet amply established that the accident took place due to the rash and negligent driving of the driver of the tractor. Though the first respondent examined himself as RW1 to show that the deceased died by falling from the tractor-trailer due to his negligence, but he was not an eye witness to the incident to speak the manner in which the accident took place. In fact, he himself admits that he was not an eye witness to the accident and his evidence does not disclose as to how he came to know about the incident. Further no other contra evidence has been let in by the respondents to show that the accident did not happen in the manner narrated by the witnesses.
As stated above, the main ground urged by the learned counsel for the appellant is that the insurance company is not liable to pay any compensation. It is urged that the policy does not cover the risk of coolies traveling in the tractor as no premium was paid by the owner. In support of its case, the appellant relied upon the evidence of RW2.
RW2, who was working as Assistant Administrative Officer of the insurance company, deposed that the crime vehicle was insured by their company and the policy issued by the company covers the risk if the vehicle is used only for agriculture purpose. Ex.B1 is the policy which was marked through him. According to him, at the time of the accident the vehicle was loaded with sunflower seed bags and since the transportation of sunflower seed bags is commercial purpose, the policy does not cover the risk of the coolies. He further deposed that the first respondent has not paid any premium to cover the risk of the coolies. Since the vehicle was used other than the purpose for which it was insured, he deposed that only the owner of the vehicle is liable for payment of compensation. But in the cross examination, RW.2 admits that use of the vehicle for transportation of sunflower seed bags from the field to the house of the agriculturist and from the house of agriculturist to the field for sowing etc. is for agricultural purpose. He also admits that he is not aware as to whether the sunflower seeds were transported in the tractor for sowing them in the fields and whether the coolies including the deceased were traveling in the tractor for loading and unloading of sunflower seed bags. However he states that since the owner of the vehicle has violated the terms and conditions of the policy, the insurance company is not liable to indemnify the first respondent owner of the vehicle.
At this stage, it would be relevant to refer to the admission of RW1 (who is the owner of vehicle) made pursuant to a question by respondent No.2 (who is the insurer of the vehicle), which is as under:
I was carrying sunflower seeds to my fields from Pulaputtur to sow them in my fields.
The Tribunal, after appreciating the evidence on record, held that the deceased was an agriculture coolie and he boarded the tractor for the purpose of loading and unloading sunflower seeds. The only ground on which the insurance company tries to exonerate itself from the liability is that the deceased was traveling in the vehicle which was used other than the purpose for which it was insured. It is urged that since the vehicle was being used for loading and unloading sunflower seed bags, the same cannot be said to be for agriculture purpose. The dispute is loading and unloading of sunflower seeds cannot be called an agriculture purpose. The said query raised by the learned counsel for the appellant is answered by RW2, who is the Additional Assistant Manager of the insurance company.
It is apt to extract that portion of the evidence of RW2, which is as under:-
Transportation of sunflower seed bags from the field to the house of the agriculturist and from the house of agriculturist to the field for sowing etc. is for agricultural purpose.
The question then would be whether the said vehicle was used for loading the seeds and unloading of the same at the fields of RW1. The said fact is established not only by the evidence of PW2, who was traveling as a coolie in that vehicle, but also that of RW1, who is the owner of the vehicle. In fact, the learned counsel for the insurance company, while cross examining RW1, the owner of the vehicle, elicited an answer which is to the effect that the vehicle was proceeding to the field for unloading the sunflower seeds for sowing them. From the evidence available on record, more particularly the evidence of RWs.1 and 2, it can be held that as on the date of accident, the owner of the vehicle was carrying sunflower seeds in his vehicle for the purpose of sowing them in his field. As stated above, RW2 in his cross examination admits that use of vehicle for transportation of sunflower seeds from the field to the house of agriculturist and from the house of agriculturist to fields for sowing them is an agriculture purpose. Therefore, the evidence of RWs.1 and 2 would amply establish that the said vehicle was used for agriculture purpose. Since it is established that the vehicle was used for agriculture purpose only, the question would be whether the policy covers the risk of the coolies traveling in the vehicle.
The learned counsel for the appellant relied upon the judgments of the Apex Court in Oriental Insurance Company Limited Vs. Brij Mohan and others and National Insurance Company Limited Vs. Prema Devi and others to show that coolie, who was traveling in the vehicle, was a gratuitous passenger or not covered under Section 147 (1) of the Act and also to show that the insurance company is not liable to indemnify the owner of the vehicle when he violates the conditions of the policy.
The learned counsel for the appellant also, while relying upon the judgments of the Apex Court in New India Assurance Company Limited Vs. Asha Rani wherein the Apex Court over rules the decision in New India Assurance Company Limited Vs. Satpal Singh relied upon the following observations of the Apex Court in support of the plea.
"25. Section 147 of the 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of "public service vehicle".
Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmens Compensation Act. It does not speak of any passenger in a "goods carriage".
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 the 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 travelling in a goods vehicle, the insurers would not be liable therefor.
I am afraid, the judgments relied upon by the learned counsel for the appellant may not apply to the case on hand for more than one reason.
In Oriental Insurance Co. Ltd. Vs. S.Ramanjaneyulu and others , this Court, while dealing with a situation where the owner of a tractor-trailer engaged the deceased to harvest and transport groundnut seeds at their village, held as under:
Admittedly the tractor and trailer was used for carrying coolies to harvest the groundnut crop. Therefore, it cannot be said that those coolies were passengers being carried for hire and reward. Therefore, it is clear the insurance company cannot avoid its liability. Therefore, I do not see any reason to interfere with the award passed by the Tribunal and hence, this appeal is liable to be dismissed.
A perusal of the policy, which was placed on record as Ex.B3 would show that the insurer collected T.P. basic premium of Rs.785/-, premium of Rs.375/- for trailer, for Third party property damage Rs.200/-, IMT-20, Compulsory PA to owner-Driver Rs.100/- and loading on Third Party Premium Rs.75/-. Apart from that, the contents of Ex.B3 insurance policy shows that it was issued subject to IMT endorsements. The IMT endorsement 17 makes it clear that the policy covers the risk of employee of the insured.
Apart from that, a perusal of the insurance policy, which is produced on record as Ex.B3, would show that the insurer has collected the premium of Rs.75/- towards loading on third party. Having collected a premium of Rs.75/- and when the vehicle was being used for agricultural purpose, the insurer cannot exonerate themselves from the liability. As mentioned above, the evidence of RW.2 itself shows that if the vehicle is used for agricultural purpose, the policy covers the risk of the deceased.
Viewed from any angle, this Court is of the opinion that the policy covers the risk of persons engaged by the first respondent for unloading the agriculture produce at the agriculture site for sowing them in the field.
In view of the above, it has to be held that the policy covers the risk of the deceased working as a coolie and the claimants are entitled to seek compensation.
As the learned counsel for the appellant did not dispute the quantum of compensation awarded to the claimants, the same need not be gone into in this appeal.
For the reasons stated above, this Court is of the view that the appeal lacks merits and the same is liable to be dismissed.
Accordingly, the Appeal is dismissed, confirming the order and decree dated 12.01.2007, passed in M.V.O.P.No.726 of 2004 on the file of the III Additional District Judge, Kadapa at Rajampet. There shall be no order as to costs.
The miscellaneous petitions, if any pending, shall stand closed.
_____________________ C. PRAVEEN KUMAR, J 10.07.2014