Telangana High Court
United India Insurance Company Limited vs Gurukula Vijaya , Kondam Vijaya And 4 ... on 15 June, 2023
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI
M.A.C.M.A.No.2587 of 2007
JUDGMENT:
This appeal is preferred by the Insurance Company aggrieved by the award and decree dated 28-09-2006 in M.V.O.P.No.498 of 2004 on the file of the III Motor Accidents Claims Tribunal, Warangal.
2. Heard learned counsel for the appellant-Insurance Company Smt S.A.V.Ratnam and learned counsel for respondents-claimants Mr. Nandigam Krishna Rao.
3. The brief facts are that on 11.05.2001 at early hours, the deceased Kondam Rajeshwar Reddy has engaged a tractor bearing No.AP 36 T 7001 on hire basis for crushing the paddy and after the work was completed, he sat on the mudguard of the tractor to go to another paddy field to crush the paddy and when the tractor was passing on Avusula Vari tank, its driver drove the same in a rash and negligent manner, due to which the tractor turned turtle and the deceased sustained grievous head injuries and other injuries and succumbed to the injuries on the spot. The claimants have filed OP., claiming compensation of Rs.4,00,000/- for the death of the deceased in the accident.
4. Respondent-Insurance Company filed counter denying the manner of accident and the alleged death of the deceased in the 2 LK, J M.A.C.M.A.No.2587 of 2007 accident. It is stated that the deceased was travelling on the mudguard of the tractor, which is in violation of the policy conditions and in contravention of Sections 147 and 149 of the Motor Vehicles Act.
5. The Tribunal having discussed the judgment of the Apex Court in National Insurance Company Limited v. Baljit Kaur and others1 held that as there are violation of the terms and conditions of the policy, the Insurance Company is not liable pay to compensation, however, applied the principle of 'pay and recover' and granted compensation of Rs.2,51,000/- with interest at 7.5% per annum from the date of petition till realization.
6. Learned counsel appearing for the appellant-Insurance Company submits that as per the evidence, the deceased has hired the vehicle and he cannot be termed as a coolie. He submits that the Tribunal, though discussed the judgment of Apex Court in Baljit Kaur's case (cited 1 supra), however, applied the principle of 'pay and recover'. She has also relied on the judgment of the Karnataka High Court in National Insurance Company Limited, Chitradurga Branch, represented by its Regional Manager Vs. Chandrappa in M.F.A.No.213 of 2008 (MV) C/W M.F.A.No.4906 of 2008 C/W M.F.A.Cross Objection No.48 of 2010, and submits that in a similar set of facts when the deceased was travelling on the mudguard of the 1 2004 ACJ 428 3 LK, J M.A.C.M.A.No.2587 of 2007 tractor by taking the risk, which is in violation of the terms and conditions of the policy, the insurance company is not liable to pay compensation. Paragraph No.25 of the said judgment reads as under;
"As regards to the passenger travelling on the top of the bus and the person travelling on the mud guard cannot be compared as vehicle make itself is different one is passenger vehicle and in this case it is only tractor is engine and nothing else. It is in these circumstances this Court has held that the said person was a passenger but it is not the case here. The person sitting on the mudguard cannot be considered as a passenger".
7. Learned counsel appearing for the respondents-claimants submits that as the deceased was a labourer at the time of accident, the Insurance Company is liable to pay the compensation.
8. According to the claimants, the deceased was engaged with the tractor for crushing the paddy. At any stretch of imagination, he cannot be termed as a labourer and nobody is permitted to travel on a mudguard. Even considering that he is a gratuitous passenger, the question of 'pay and recover' will not arise in this case for the reason that the Honourable Apex Court in Anu Bhanvara and others V. Iffco Tokio General Insurance Company Limited and others2 affirming the judgment of the Apex Court in New India Assurance Company Limited v. Asha Rani3 has held that when there is violation of terms and conditions of the policy, the Insurance Company is not liable to pay compensation and only in Baljth Kaur's case (cited 1 supra), 'pay and 2 (2020) 20 SCC 632 3 (2003) 2 SCC 223 4 LK, J M.A.C.M.A.No.2587 of 2007 recover' was ordered, where by virtue of the orders of the Apex Court in New India Assurance Company Limited v. Satpal Singh4, if the Tribunal has ordered 'pay and recover', the same was not disturbed. Hence, this Court is of the view that the Tribunal having come to the conclusion and having considered the judgment of the Apex Court in Baljith Kaur's case ought not to have ordered 'pay and recover'.
9. Accordingly, the Appeal is allowed and the owner of the tractor alone is liable to pay compensation to the claimants. As the appeal is of the year 2007 and as the claimants have withdrawn certain amounts as per the interim order, balancing the interest of both the parties, the Insurance Company shall not recover the money from the claimants. However, they are at liberty to recover the same from the owner of the vehicle.
10. Miscellaneous petitions, if any pending in this appeal, shall stand closed.
____________________________ SMT LALITHA KANNEGANTI, J 15th June, 2023 sj 4 (2000) 1 SCC 237