Andhra Pradesh High Court - Amravati
The United India Insurance Co Ltd vs Bommagalla Thimmaraju Anr on 3 February, 2023
HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
MACMA No.222 of 2012
JUDGMENT:
1. Aggrieved by the order dated 29.09.2011 in MVOP No.644 of 2008 passed by the Chairman, Motor Accidents Claims Tribunal - cum
- VI Additional District Judge, Kurnool (for short 'the Tribunal'), the 2nd respondent-United India Insurance Company Limited, Kurnool, has preferred this appeal questioning the Tribunal's Awarad.
2. The parties will be referred to as arrayed in the MVOP for convenience.
3. The claimant had applied to Section 166 of the Motor Vehicles Act, claiming compensation of Rs.4,00,000/- for the injuries and disability sustained by him in a motor vehicle accident that occurred on 20.04.2008.
4. The claimant's case is that on 20.04.2008, the claimant and other hamalies were proceeding in the tractor-trolley bearing No.AP-21- N-3479 and 3480 (herein referred to as 'the offending vehicle') from the quarry with a load of slabs for unloading and after it reached Maddilety Swamy Temple at about 2.00 PM, the offending vehicle's driver drove it at high speed with rash and negligent 2 MACMA_222_2012 manner. He lost control over the offending vehicle, as a result of which, it turned turtle by leaving the road on the left side, due to which the claimant sustained grievous injuries, and other Hamalies also suffered injuries. The claimant was immediately taken to the Government General Hospital, Kurnool, but his left leg was amputated.
5. The 1st respondent, the owner of the offending vehicle, remained ex parte.
6. The 2nd respondent filed a counter, denying the manner and mode of the accident, the age and earnings and the claimant's medical expenses. The offending vehicle's driver did not possess a valid and effective driving licence and valid permit to the vehicle at the time of the accident. The offending vehicle's owner paid no separate premium to cover the risk to the hamalies under the policy. Hence, the insurance company is not liable to compensate the claimant. The claimant colluded with the owner of the offending vehicle and, by suppressing the actual facts, filed the petition for a false claim.
7. Based on the pleadings, the Tribunal has formulated appropriate issues. On behalf of the claimant, PWs.1 to 3 got examined and 3 MACMA_222_2012 marked Exs.A.1 to A.7 and Ex.X1. On behalf of the respondents, RW.1 got examined and marked Ex.B1 copy of the policy.
8. After evaluating the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle by its driver. The Tribunal granted a compensation amount of Rs.2,09,000/- with interest @ 9% per annum from the date of the petition till the date of realization against respondents 1 and 2.
9. Heard both the learned Counsel. Perused the record.
10. The learned Counsel for the appellant has contended that the Tribunal ought to have noted that the policy does not cover the risk of the injured, who is a hamali in the offending vehicle; the Tribunal ought to have exonerated the appellant from its liability.
11. Learned Counsel for the respondents supported the Tribunal's findings and observations.
12. Learned Counsel for the respondents supported the Tribunal's findings and observations.
13. Now the point for determination is, Whether the Tribunal erred in fastening the liability on the appellant/insurance company/ 2nd respondent ? 4
MACMA_222_2012 Point :
14. From the reading of the grounds of appeal and submissions made on behalf of either side, it can be seen that the following findings are not disputed by the insurance company or the claimant.
a. Considering the oral and documentary evidence on record, the Tribunal held that the accident occurred due to rash and negligent driving of the offending vehicle's driver. The 1st respondent is the owner of the offending vehicle, and the 2nd respondent rendered the insurance policy to the crime vehicle under the original of Ex.B1, which was in force as of the date of the accident.
b. The Tribunal fixed the compensation of Rs.2,09,000/- towards injuries sustained by the petitioner with proportionate costs and interest against respondents 1 and
2. Though the respondent/insurance company preferred the appeal, it has not questioned the quantum of compensation. The petitioner also has not preferred any appeal or cross-objections against the quantum of compensation fixed by the Tribunal. Given the same, this Court finds that the findings above given by the Tribunal 5 MACMA_222_2012 have attained finality. The particulars of the accident and the parameters taken by the Tribunal for awarding compensation should be kept from narrated and discussed in detail.
15. The main contention of the appellant/insurance company is that the policy under the original of Ex.B1 is not covering for the risk of hamalies since no such extra premium was paid by the 1st respondent/owner of the offending vehicle.
16. The copy of the insurance policy is marked as Ex.B1. the premium of Rs.25/- is collected by the insurance company covering the risk of WC to employee 1.
17. RW.1 - K.Venkoba Rao, the Senior Assistant of the 2 nd respondent/insurance company, admitted in his evidence that the policy taken under Ex.B1 is a miscellaneous special package policy by which the risk will be covered for both tractor and trailer. The Tractor and Trailer are always used for loading and unloading napa slabs and so allowing its hamalies. Witness adds that policy will not be allowed for the hamalies.
18. It is the evidence of RW.1 and also the contention of the insurance company that as per Ex.B1 policy, the vehicle shall be used only for agricultural purposes and not for commercial 6 MACMA_222_2012 purposes. At the time of the accident, the trailer was used for commercial purposes i.e., for the transportation of slab stones, in violation of the terms and conditions of the policy.
19. In this regard, the Tribunal observed that even if presumed that PWs.1 and 2 as hamalies are not entitled to any compensation since there is no such extra risk covered by the policy as no premium was paid by the owner of the vehicle, PWs. Still, 1 and 2, as third parties, are entitled to claim compensation. It seems that the Tribunal, without going through the policy terms, made such an observation. As already observed, Ex.B1 shows that the premium amount is collected for one employee. Even if it is assumed that the offending vehicle was used for a different purpose, the insurance company cannot escape from its liability.
20. In a decision between Amritlal Sood vs Kaushalya Devi Thakar1 the Hon'ble Apex Court held that "the comprehensive policy issue covers the risk of gratuitous passengers, i.e., the car's occupants. Therefore, it is clear from the Act itself, the words of the policy and the decision in Amritlal Sood's case that a comprehensive policy covers the risk of gratuitous passengers to the extent of the liability incurred.
1 (1998) 3 SCC 744 7 MACMA_222_2012
21. A three-Judge Bench of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs Baljit Kaur and Others 2, held that, considering the question of whether the insurance policy in respect of goods vehicle is required to cover the gratuitous passenger in view of the amendment to Section 147 of the Act. The apex court, after considering all the previous decisions, concluded that the Insurance Company was not liable as the risk of an unauthorized passenger in a goods vehicle or gratuitous passengers is not covered under the policy, and there is a breach of the condition of the policy in carrying a passenger in a goods vehicle. Therefore, the owner of the vehicle was held liable to satisfy the decree. However, in paragraph No. 21, the Court was of the opinion that the interest of justice would be sub-served if the Insurance Company was directed to satisfy the award in favour of the claimant, if not already satisfied and recover the same from the owner of the vehicle. The Court also observed that, for such recovery, it would not be necessary for the insurer to file a separate suit. Still, it may initiate a proceeding before the executing Court as if the dispute between the insurer and the insured was also determined by the Tribunal and the issue was 2 (2004) 2 SCC 1 8 MACMA_222_2012 decided against the owner and in favour of the insurer.
22. In a decision between National Insurance Co.Ltd., V. Anjana Shyam3 the Hon'ble Apex court held that "it does not mean that an insurer is not bound to pay amounts outside the contract of insurance itself or in respect of persons not covered by the contract at all. In other words, the insured is covered only to the extent the passengers are permitted to be insured or directed to be insured by the statute and actually covered by the contract. An insurance company can be made liable only in respect of the number of passengers for whom insurance can be taken under the Act and not for the other passengers involved in the accident in a case of overloading. "Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by insurance policy".
23. The identical issue once again surfaced in the case of United India Insurance Co.Ltd., v. K.M.Poonam 4 , the Hon'ble Apex Court reiterated the relevant provisions of the Motor Vehicles Act 3 2007 CJ 2129 (SC) 4 2011 ACJ 917 (SC) 9 MACMA_222_2012 and, after taking note of its various earlier decisions, including Baljit Kaur (supra) and Anjana Shyam (supra), has resolved and settled the issue thus: "the liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle n question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. A such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned".
24. In a decision Shivaraj vs Rajendra 5 , the Apex Court, in the following facts of the case, held that ".....the High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger who was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed 5 2018 Law Suit (SC) 853 10 MACMA_222_2012 out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. In our opinion, the conclusion reached by the High Court, in our opinion, is unexceptionable in the present case.
.....At the same time, however, in the facts of the present case, the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with the liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs Swarna Singh & Others 2004 3 SCC 297 1, Mangla Ram Vs. Oriental Insurance Co. Ltd. 2018 5 SCC 656, Rani & Ors. Vs. National Insurance Co. Ltd. And others 2018 9 Scale 310 including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. 2017 4 SCC 796. In other words, the High Court should have partly allowed the appeal preferred by respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with the liberty to recover the same from the tractor owner". 11
MACMA_222_2012
25. In Shamanna and another Vs. The Divisional Manager The Oriental Insurance Co. Ltd. and Ors.6, the Apex Court held that "to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni and anoth- er.7 which doubted the correctness of the decisions in the exercise of jurisdiction under Article 142 of the Constitution of India directing insurance companies to pay the compen- sation amount even though the insurance company has no liability to pay. In the Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such types of cases and that if the insurance com- pany has no liability to pay at all, then it cannot be com- pelled by order of the Court in the exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. The above reference in the Parvathneni case was disposed of on 17.09.2013 by the three-Judges Bench 6 Civil Appeal No.8144 of 2008 7 (2009) 8 SCC 785 12 MACMA_222_2012 keeping the questions of law open to be decided in an ap- propriate case. Since the reference to the larger Bench in the Parvathneni case has been disposed of by keeping the ques- tions of law open to be decided in an appropriate case, pre- sently, the decision in the Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance com- pany to pay the compensation amount awarded to the clai- mants and, after that, recover the same from the owner of the vehicle in question is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal di- recting the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside, and the award passed by the Tribunal is restored".
26. In a decision between Manuara Khatun and others Vs. Rajesh 13 MACMA_222_2012 Kr. Singh and others8, it is a case where the Tribunal further held that all the passengers, including the two deceased, were travelling in Tata Sumo for hire and hence they were held to be gratuitous passengers. Due to the said reason, United India Insurance Company Ltd., the insurer of Tata Sumo(offending vehicle), was not liable". In the said facts of the case, the Hon'ble Apex Court held that "in view of the foregoing discussion, we are of the view that the direction to United India Insurance Company (respondent No. 3) - they being the insurer of the offending vehicle which was found involved in causing an accident due to negligence of its driver needs to be issued directing them (United India Insurance Company-respondent No.3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)-respondent No.1 in execution proceedings arising in this very case as per the law laid down in Para 26 of Saju P. Paul's case quoted supra".
27. As seen from the Ex.B1 policy, the owner of the offending vehicle paid an additional premium to cover the liability of one employee. The insurance company is bound by the terms of the contract. In the present case, the policy issued by the insurance company is a package policy.
28. On the other hand, the policy issued under Section 147 of the Motor Vehicles Act is statutory and also called an Act policy. The 8 2017 (2) ALD 65 (SC) 14 MACMA_222_2012 insurer's liability under this policy is restricted to indemnify the insured in respect of the claim made by the third parties and the owner of the goods or his authorized representative who travels in the goods vehicle along with the goods.
29. According to my opinion, even a worker who travels in the vehicle may be considered as his authorized representative of the owner travelling in the offending vehicle as a third party. On that ground, the Insurance Company is liable to pay compensation, as a statutory liability, to the third party who was travelling as a worker in the offending vehicle, being his authorized representative of the owner carried in the vehicle. So, on that ground, the insurance company cannot deny the liability of workers travelling in the offending vehicle at the time of the accident.
30. Since the evidence on record shows that the proceeding of the injured in the offending vehicle, though it has not contributed to the accident, this Court views that a direction can be given to the insurance company to pay and recover the compensation from the offending vehicle's owner, as there is no seating provided to worker/employee in the trailer.
31. In the light of the law laid down by the Apex Court and High 15 MACMA_222_2012 Court, this Court finds that the contention raised by the insurance company, that it cannot be fastened with the liability, is not sustainable.
32. Given the discussion, as mentioned above, the appeal is partly allowed without costs by modifying the order dated 29.09.2011 in MVOP No.644 of 2008 passed by the Tribunal. The 2 nd respondent/insurance company is directed to pay the compensation awarded by the Tribunal, excluding the amount already paid, within two months from the date of the order and recover the same from the offending vehicle's owner by filing an Execution Petition before the Tribunal. The petitioner can withdraw the amount by filing an appropriate application before the Tribunal as per the Tribunal's terms.
33. Miscellaneous petitions pending, if any, in this appeal shall stand closed.
------------------------------------- T. MALLIKARJUNA RAO, J Dt.03.02.2023 KGM/SAK