Andhra HC (Pre-Telangana)
National Insurance C. Ltd., Nizamabad vs Boini Gangaram And Another on 13 August, 2014
Author: B. Chandra Kumar
Bench: B. Chandra Kumar
HON'BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A.NO.1020 of 2004 13-08-2014 National Insurance C. Ltd., Nizamabad ... APPELLANT/PETITIONER Boini Gangaram and another RESPONDENTS Counsel for Appellant: Sri E. Venugopal Reddy Counsel for Respondent: Sri P. Radhive Reddy <GIST: >HEAD NOTE: ? Cases referred 1. 2013 (6) ALD 125 2013 (6) ALD 125 THE HONBLE SRI JUSTICE B. CHANDRA KUMAR C.M.A.NO.1020 of 2004 and M.A.C.M.A.NO.3671 of 2005 and CROSS OBJECTIONS (SR) Nos.10079 and 11375 of 2006 COMMON JUDGMENT:
CMA No.1020 of 2004 and MACMA No. 3671 of 2005 are filed by the Insurance Company and the Cross Objections (SR) Nos.10079 of 2006 are filed by the claimant in C.M.A.No.1020 of 2004 and Cross Objections (SR) No.11375 of 2006 are filed by the legal heirs of one of the injured claimant in M.A.C.M.A.No.3671 of 2005. Since the issues involved in all the above matters are similar in nature, they are being disposed of by this common judgment.
2. CMA No.1020 of 2004 arise out of the award passed in OP No.665 of 2000, wherein the injured claimed total compensation of Rs.2,00,000/- and the Tribunal awarded an amount of Rs.1,30,000/-. The claimant in OP No.665 of 2000 filed cross objections seeking enhancement of compensation. MACMA No.3671 of 2005 is filed by the Insurance Company challenging the award passed in OP No.668 of 2000, wherein the original injured filed claim petition and after his death his legal heirs have come on record. The Tribunal awarded compensation of Rs.1,00,000/- and apportioned the same to the LRs of the original claimant. The legal heirs of the original claimant in OP No.668 of 2000 filed cross objections seeking enhancement of compensation.
3. The brief facts of the case are as follows:
That on 18-04-2000 the claimants in O.P.No.665 of 2000 and 668 of 2000 were proceeding in the offending lorry bearing No.AP02T 0899 from Metpalli to Nizamabad. It is alleged that the accident occurred due to negligence of the lorry driver when they reached Ammakkapet village limits, as a result of which the claimants sustained injuries.
4. The trial Tribunal framed the following issues in both O.P.Nos.665 and 668 of 2000 for trial as follows:
1. Whether the accident was due to rash and negligent driving of the lorry bearing No.AP-02-Tribunal-0899 by its driver?
2. Whether the petitioners are entitled for compensation ? If so, to what amount and against which of the respondents?
3. To what relief?
5. On behalf of the claimant in O.P.No.665 of 2000, the petitioner gave evidence as PW1 and also examined PW-2 Dr.T. Narsing Rao and got marked Exs.A1 to A10. On behalf of the second respondent, RW1 was examined and Exs.B1 was marked. On behalf of claimant in O.P.No.668 of 2000, PWs.1 to 4 were examined and Exs.A1 to A83 and Ex.C1 were marked. On behalf of respondents, RW1 was examined and Ex.B1 was marked.
6. The Insurance Company contested the matter. The main contention of the Insurance Company is that the injured claimants were traveling as unauthorized passengers in a goods vehicle and therefore, the Insurance Company is not liable to pay compensation.
7. The Tribunal came to the conclusion that the accident occurred due to negligence of the lorry driver. The finding is not in dispute. The Tribunal having observed that the Insurance Company has not appointed an Investigator to investigate the case and they have not examined the first respondent or the driver of the vehicle disbelieved the version of the Insurance Company. Thus, the Tribunal allowed both the O.Police Station. And awarded compensation stated supra.
8. Learned counsel for the Insurance Company submits that the recitals of FIR itself clearly go to show that the injured claimants were traveling as passengers in a goods vehicle and therefore the Insurance Company is not liable to pay compensation. It is also his submission that in case of unauthorized passengers traveling in a goods vehicle pay and recovery cannot be ordered in view of the settled legal position.
9. On the other hand, learned counsel for the claimants submits that the police after completion of investigation laid charge sheet, wherein it is clearly mentioned that the injured were traveling as Hamalees. It is also his submission that there is nothing to disbelieve the evidence adduced on behalf of the claimants to show that the injured were traveling as Hamalees. It is submitted that the policy being comprehensive and additional premium is paid to cover the risk of Hamalees and therefore, the Insurance Company is liable to pay compensation. As far as cross objections are concerned his main contention is that the legal heirs of the original claimants are entitled to compensation for pain and suffering, though the original injured claimant is no more.
10. In reply, learned counsel for the Insurance Company submits that the policy does not cover even the Hamalees and no additional premium is paid.
11. The claimant in O.P.No.665 of 2000 is examined as PW1. He has categorically deposed that he was traveling in the lorry from Metpally towards Nizamabad as Hamali. During the cross-examination it is elicited from this witness that the driver of the lorry called him to do Hamali work on the lorry and there were totally six Hamalies at the time of accident. He denied the suggestion that he was not working as Hamali.
12. On behalf of respondents, RW1 is examined. His evidence is that the passengers risk is not covered. It is not the case of the claimant that he was traveling as a passenger. Even if we accept the evidence of RW1 that the passengers risk is not covered the claim of the claimants cannot be rejected since he claimed that he was traveling as Hamali. It is not the case of RW1 that policy does not cover the risk of Hamali. He did not whisper anything as to whether Hamalees are covered or not. It is elicited from his cross-examination that the Insurance Company did not appoint an Investigating Officer to investigate into this case. If the Insurance Company has entertained any doubt that the claimants were not traveling as Hamalies, then the Insurance company should appoint an Investigating Officer to investigate into the issue.
13. The main contention of Sri Venu Gopal Reddy, learned counsel for the appellant is that in the First Information Report there is nothing to show that the claimants were traveling as Hamalies. It appears that the First Information Report is not lodged by the claimant. It was lodged by one Ande Rajam who is working as Village Servant. He has mentioned in the First Information Report that having learnt that an accident was occurred, as a Village Servant he went to the spot and then lodged a complaint to the Police. From this fact it is clear that the complaint is neither lodged by the driver nor any of the persons traveling in the lorry. So, the first informant had no personal knowledge or any definite information as to in what capacity the claimants and others were traveling in the lorry. So, even if it is mentioned in the First Information Report that claimants were traveling as passengers by the first informant that is not sufficient to disbelieve the evidence of the claimants. More over, the Village Servant who lodged First Information Report is not examined. There was no opportunity for the claimants to cross-examine him. The Tribunal should have considered as to who lodged complaint, whether he had any personal knowledge or whether contents of First Information Report were only hearsay. It is settled law that hearsay evidence is no evidence.
14. Learned counsel also submits that no premium has been paid to cover the risk of Hamalies. When the Insurance Company has not adduced any evidence in this regard and RW1 is silent as to the coverage of risk of Hamalies, I am of the view that his contention need not be discussed in detail. Therefore, I do not see any reasons to allow the appeals.
15. Accordingly, both C.M.A. and M.A.C.M.A. are dismissed. There shall be no order as to costs.
16. Cross Objections (SR) No.10079 of 2006 in M.A.C.M.A. No.1020 of 2004: The Tribunal has awarded reasonable compensation and it appears that there is nothing to enhance the compensation. Accordingly, the Cross Objections are dismissed.
17. Cross Objections (SR) No.11375 of 2006 in C.M.A. No.3671 of 2005: The Tribunal has awarded only Rs.1,00,000/- and no amount is awarded towards pain and suffering. It has to be seen that the accident occurred on 18-04-2000, but subsequently the first claimant died during the pendency of the case before the Tribunal. So, from the date of accident till his death the first claimant must have undergone lot of pain and suffering. In view of the judgment of this Court in case between Reliance General Insurance Company Limited v. B. Mallaiah (died) by LRs. and another , it appears that the legal heirs of the deceased/first claimant are also entitled for the claim of pain and sufferance. Therefore, an amount of Rs.30,000/- (Rupees thirty thousands only) is awarded towards pain and sufferance. Accordingly, the cross objections are allowed. The second claimant shall be paid Rs.55,000/- in all and other claimants shall be paid Rs.25,000/- each. The enhanced amount shall carry interest at 7.5 % p.a. from the date of petition till realization.
18. Miscellaneous Petitions pending, if any, in these C.M.A. and M.A.C.M.A. shall stand closed.
_________________________ B. CHANDRA KUMAR, J August 13, 2014