Andhra Pradesh High Court - Amravati
Avula Bhikshmayya, E.G. Dist. vs Patan Gaffar Khan, Guntur Dt. 2 Ot on 14 December, 2022
1
HON'BLE SRI JUSTICE T MALLIKARJUNA RAO
MACMA.No.1112 OF 2013 and M.A.C.M.A. No.1113 OF 2013
COMMON JUDGMENT :
1. Both the M.A.C.M.A.'s arose out of the common judgment and order passed in MVOP 223 of 2010 and MVOP 345 of 2010 dated 10th April 2013 by Chairman Motor accidents claims Tribunal cum Ist Additional District Judge Rajahmundry, based on common evidence, both the appeals are taken up together to pass common judgment.
2. The claimants in MVOP 223 of 2010 filed a claim petition under 163-A of MV Act read with Rule 455 of A.P.M.V. Rules claiming compensation of Rs. 4,00,000/-for the death of Vallepu Gurayya @ Guruvulu. Against the orders passed in MVOP 223 of 2010, the claimants preferred MACMA 1112 of 2013.
3. The claimants in MVOP 345 of 2010 filed a claim petition under 163-A of MV Act read with Rule 455 of A.P.M.V. Rules claiming compensation of Rs. 4,10,988/-for the injuries sustained by the petitioner Avula Bikshayya. Against the orders passed in MVOP 345 of 2010, the claimants preferred MACMA 1113 of 2013.
4. The claimants' case in both M.V.O.P.'s is that on 06.08.2009 at about 12.00 a midnight, the 1st respondent drove the lorry bearing registration No. AP-07-TU-9376 rashly and negligently while proceeding towards Vijayawada from Rajahmundry. It went 2 out of the control of the 1st respondent, and he applied carelessly sudden brakes to the lorry at the place of an accident near Z.P.H. School on the outskirts of Anathapalli on Kovvuru to Eluru Road. The lorry gave heavy jerks, and the load in the lorry was pushed forward and fell on the deceased herein, M.V.O.P. and another person who was travelling in a said lorry going from Rajahmundry towards Vijayawada; the accident occurred due to careless and rash driving of the lorry by the 1st respondent, as a result of the accident, the deceased in O.P. 223 of 2010 was crushed between the load in the lorry, the lorry cabin, sustained severe fracture injuries to the head and other parts of the body and succumbed to the injuries on the spot. Further, the petitioner in (MVOP 345 of 2010) was crushed between the load in the lorry and the lorry cabin and sustained severe fracture injuries to the head and backbone (spine).
5. In both O.Ps., the driver shown as 1st respondent, 2 and 3 are the owner and the insurer of the lorry AP-07-TY-9376, respectively, involved in the accident. As such, all the respondents are jointly and severally liable to compensate the petitioners.
6. The 1st respondent remained exparte.
7. 2nd respondent filed a written statement contending that Lorry MMV is bearing No. A.P. 07 TU 9376 was insured with the 3 rd 3 respondent's company at the time of the alleged accident, and there is a valid and effective insurance policy certificate valid from 28.05.2009 to 19.05.2010 and the same was issued by the 3rd respondent company. So this respondent is not liable to pay compensation. 1st respondent has a valid and effective driving licence, at the time of the accident. Hence, the petition is liable to be dismissed.
8. 3rd respondent's insurance company contended that the claim is excessive, exorbitant and exaggerated, and the petitioners are not entitled to the same from this respondent. The driver, the 1 st respondent, has no valid and effective driving license to drive the crime vehicle at the time of the accident. The deceased was travelling as an unauthorized passenger; the risk of an unauthorized passenger is neither covered under the policy nor the provisions of the M.V. Act. The petition is liable to be dismissed.
9. Based on the pleadings, the Tribunal framed the relevant issues.
Before the Tribunal, on behalf of petitioners PWs.1 to 5 got examined, marked Exs.A1 to A9, Exs.X1 to X7, and on behalf of the 3rd respondent RW.1 and 2 got examined, marked Exs.B1 to B3.
10. After considering the evidence on record, the Tribunal held that the accident occurred due to the driver's rash and negligent 4 driving of the offending vehicle and the 2 nd respondent is alone liable to pay the compensation amount. The Tribunal held that petitioners in O.P. 223 of 2013 are entitled to compensation of Rs.3,32,000/- with interest @6% p.a from the date of the petition, apportioned among the petitioners.
11. The Tribunal held the petitioner in O.P.345 of 2010 is entitled to compensation of Rs.3,13,572/-with interest @6% p.a from the date of the petition.
12. Heard learned counsel for the appellant and the respondents in both O.P.s. and perused the records.
13. The learned counsel appearing for claimants in MACMA 1112 of 2013
14. Submits that the Tribunal failed to note the earnings of the deceased correctly and the personal expenses of the deceased to be deducted as 1/4th only, as there are only three dependents. The Tribunal failed to award compensation under the heads of loss of estate and love and affection for which the petitioners are entitled, being wife and daughters
15. . Tribunal below rightly awarded compensation by fixing liability on the third respondent- Insurance Company, though initially could not draw inference Ex. A9 cover not and Ex. B1 policy clearly shows the insurance company collected premiums for two un-named occupants. The evidence of R.W. 1 and RW2 adduced 5 by the respondent indicates that the Ex. B1 policy has covered the risk of payment of two un-named occupants though this portion of evidence is omitted to discuss in the judgment; it reflects the result based on the cited judgment. The Tribunal below ought to have followed the correct multiplier and granted interest @ 9%.
16. The learned counsel for the appellant in MACMA 1113 of 2013 further contends that the Tribunal failed to grant compensation under the heads of extra nourishment, loss of earning at least six months and attendant charges.
17. Per contra, the learned counsel appearing for respondents supported the findings and observation of the learned Tribunal.
18. Now the points for determination are whether the Tribunal is justified in not fastening the liability on the insurance company. and whether the compensation amount awarded is just and reasonable and requires enhancement POINTS :
19. There is no serious dispute about the manner of an accident. The finding of the Tribunal that the accident occurred due to rash and negligent driving of the 1st respondent is also not disputed. The conclusion of the Tribunal that there is a valid and efficacious insurance policy issued by the 3rd respondent company and the 1st respondent has a valid and effective driving 6 license is also not disputed. Since the said findings and observations of the Tribunal are not disputed by filing appeals or cross-examinations, this Court need not refer to the facts relating to those aspects.
Quantum of the compensation amount awarded in MVOP 223 of 2010.
20. The claimants' case that in O.P. 223 of 2010, the deceased died due to injuries sustained in an accident is not disputed. It is also evident from the Ex A2 inquest report and Ex A3 post-mortem report. The Tribunal has taken the age of the deceased as 45 years per the P. M certificate. The Tribunal has taken the income of the deceased as 3,000/- per month and applied the multiplier 13 as per schedule II to Sec 163-A is "13", and the Tribunal deducted 1/3rd of the earnings towards personal and living expenses and fixed the compensation amount by following the schedule II to Section 163-A of Motor Vehicle Act. As it is not a petition filed under Section 166 of the MV Act, petitioners are not entitled to compensation under the heads of loss of love and affection as claimed. After considering the material on record, this Court views that Tribunal awarded just compensation. 7 Quantum of the compensation amount awarded in MVOP 345 of 2010.
21. After considering the material on record, this Court views that the Tribunal has granted just compensation as per section 163-A of the MV Act. The grounds raised by the petitioner concerning compensation amount are not sustainable as it is not a petition filed under section 166 of the MV Act. Thus, the findings recorded by the Tribunal are not to be interfered with and they are confirmed. Accordingly, this issue is answered.
22. In the case of the petitioners in both M.V.O.Ps., while the deceased in MVOP 223 of 2010 and the petitioner in MVOP 345 of 2010 were travelling in a lorry, the accident occurred. It is the evidence of PW 2, who travelled in the lorry, and sat between the cabin and load. They boarded the lorry with agricultural implements. The Tribunal observed that it is not their case that the deceased and the petitioner were engaged by the owner of goods as coolies for loading and unloading purposes. The petitioners failed to establish whether they were the owner of the goods or the authorized representatives. As seen from the record, though respondents got examined R.W.'s 1 and 2 . the Tribunal failed to refer to their evidence.
23. R.W. 1 K. Ravi Prasad, working as a manager, claims stated in his cross-examination Ex. B 1 policy is in force; it was issued at 8 the Vijayawada office, and a cover note was issued. The cover note and the policy are both valid. Ex A9 cover is related to Ex B1 policy. Ex A9 premium was for two un-named occupants, and the premium mentioned in Ex A9 is correct. The evidence of R.W. 2 M. Nageswara Rao, Typist in the R.T.A. office, shows that he produced a B-register and permit for a crime vehicle marked as Ex. X5and X6. He also filed an Ex X7 authorization letter. R.W. 2 further reported that as per Ex X 5 B-register, the vehicle is classified as a goods carriage MMV. The seating capacity is three, including the driver in the lorry's cabin. Except for the three persons mentioned in the permit, none else is entitled to travel behind the cabin of the crime vehicle.
24. The evidence of R.W. 1 and 2 coupled with Ex A9 cover note and Ex B1 policy shows the insurance company collected premiums for un-named occupants, and the seating capacity is three, including the driver in the lorry's cabin as per Ex B5 register. It seems that unfortunately the Tribunal, without perusal of the evidence of R.W.'s. 1 and 2 and the documents got marked through them. It is observed that there is no evidence to show that the owner paid an extra premium to cover the risk of non- fare passengers. It has not followed the citations: In Chinnappan 9 Vs. K.P. Ramraj and another 1 , in United India Insurance Company Limited Vs. Sunita and others 2, by observing that the said decisions deal with the extra premium covering the risk of passengers, the liability would come up. Had the trial court properly perused the record, it could have noticed the premium is collected to cover the risk of non-fare passengers.
25. In a decision between Amritlal Sood vs Kaushalya Devi Thakar3, 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.
26. A three-Judge Bench of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs Baljit Kaur and Others 4 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 1 2012(3) T.A.C.807 (Mad.) 2 2008 (4) A.C.J. 111 3 (1998) 3 SCC 744 4 (2004) 2 SCC 1 10 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 vehicle's owner was held liable to satisfy the decree. However, in paragraph 21, the Court thought that the interest of justice would be sub-served if the Insurance Company is directed to satisfy the award in favour of the claimant, if not, already satisfied and recover the same from the owner of the vehicle.
27. In a decision between National Insurance Co.Ltd., V. Anjana Shyam5 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 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 for whom insurance has been taken as a fact and not in respect of 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 5 2007 CJ 2129 (SC) 11 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".
28. The identical issue once again surfaced in the case of United India Insurance Co.Ltd., v. K.M.Poonam 6 , the Hon'ble Apex Court reiterated the relevant provisions of the Motor Vehicles Act 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 in 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".
29. In a decision between Manuara Khatun and others Vs. Rajesh Kr. Singh and others, it is a case where the Tribunal further 6 2011 ACJ 917 (SC) 12 held that all the passengers, including the two deceased, were travelling in Tata Sumo for hire and hence 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 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 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". Shamanna and another Vs. The Divisional Manager The Oriental Insurance Co. Ltd. and Ors. The Hon'ble Supreme 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 another. 7 which doubted the correctness of the decisions in the exercise of 7 (2009) 8 SCC 785 13 jurisdiction under Article 142 of the Constitution of India directing insurance companies to pay the compensation 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 company has no liability to pay at all, then it cannot be compelled 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 keeping the questions of law open to be decided in an appropriate case. Since the reference to the larger Bench in the Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently, 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 company to pay the compensation amount awarded to the claimants and, thereafter, 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 14 award passed by the Tribunal directing 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".
30. Coming to the instant case, the vehicle owner paid an additional premium to cover the liability of two persons. 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. As such, the 3rd respondent is liable to pay the compensation amount. The evidence of PW 2 shows sufficient space available in the lorry, only a half load consisting of welding of iron rod boxes. The said evidence of PW 2 is not at all disputed.
31. On the other hand, the policy issued under section 147 of the Motor Vehicles Act is statutory and also called an Act policy. The 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 good or his authorized representative who travels in the goods vehicle along with the goods. It is elicited in the cross- examination of PW 2 by counsel for R 3 insurance company that the driver of the insurance company demanded PW 2 and the 15 deceased pay Rs.10,000/- and they bargained for Rs.6,000/- towards their fare as well as the samans, i.e., crowbars, spades and other implements (Podugu, Para and samanulu). Having elicited the same, the insurance company failed to take steps by summoning the lorry driver to prove that the evidence was incorrect. In view of the same, there is no difficulty in holding that they travelled in the offending vehicle as the owner of goods. For the foregoing reasons, this Court views that the Tribunal has not properly perused and considered the evidence on record.
32. In view of the above materials, this Court views that the Tribunal committed an error in fastening the liability on the 3rd respondent is liable to pay the compensation amount since the deceased and injured were not travelled in the cabin. However, 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 owner.
33. In the result, MACMA 1112 of 2013 and 1113 of 2013 are allowed by holding that 3rd respondent is liable to pay compensation amount with interest as awarded by the Tribunal. The insurance company is directed to deposit the compensation amount awarded by the Tribunal within two months and recover the same from the offending vehicle owner by filing an Execution Petition before the Tribunal. The petitioners in both O.P. are 16 entitled to compensation amount as apportioned by the Tribunal and permitted to withdraw as per its terms by applying to the Tribunal.
34. Miscellaneous petitions, if any are pending, shall stand closed.
__________________________________ JUSTICE T MALLIKARJUNA RAO Date :14.12.2022 BV