Andhra Pradesh High Court - Amravati
Bajaj Allianz General Insurance ... vs B. Yella Subbaiah And Another on 2 February, 2024
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
M.A.C.M.A. No.1056 OF 2016
JUDGMENT:-
Challenge in this M.A.C.M.A. is to the award, dated 08.07.2011 in M.V.O.P.1075 of 2007, on the file of IV-Additional District Judge-cum-Motor Accidents Claims Tribunal, Kurnool, ("Tribunal" for short) where under, the Tribunal in a motor vehicle accidents claim, as against the original claim of Rs.1,00,000/- for the injuries sustained by the claimant, granted compensation of Rs.47,000/- payable by the respondent Nos.1 and 2.
2. The parties to this M.A.C.M.A will hereinafter be referred to as described before the Tribunal for the sake of convenience.
3. The case of the claimant in the M.V.O.P.No.1075 of 2007 according to the petition averments, in brief, is that:
(i) The claimant is aged about 24 years. He was hale and healthy at the time of the accident. He was working as a Hamali on the tractor and trailer bearing No.AP-21-V-2907 and AP-21-V-2908 (hereinafter will be referred to as "offending vehicle"). On 21.03.2006 in the afternoon, the petitioner along with few hamalies were proceeding in the offending vehicle as its hamalies from Orvakal village to Veldurthy for uploading the 2 stones. The driver of the tractor and trailer i.e., the offending vehicle drove the same with high speed in a rash and negligent manner. At 4.00 pm, on Veldurthy-Ramallakota R&B road near Brahmagundam village, he lost control over the tractor and trailer as a result trailer turned turtle as such all the hamalies including the petitioner fell down along with trailer as a result they received injuries and one of the hamalies died on the spot.
The accident occurred was due to rash and negligent act of the driver of the said tractor and trailer. The 1st respondent being the employer of the driver of the offending vehicle and the 2nd respondent being the insurer are responsible to pay the compensation. Though, the petitioner is entitled to claim an amount of Rs.1,40,000/-, he confined his claim only to a sum of Rs.1,00,000/-. Hence, the claim.
4. The 1st respondent (the owner of the tractor) filed his counter contending in substance that the 1st respondent validly insured the vehicle with 2nd respondent vide policy bearing No.OG-06-1801-5001-00000226 which is valid from 04.05.2005 to 03.05.2006. The road accident was occurred on 21.03.2006 during the tenure of the policy. If at all the petitioner is entitled for any compensation, it should be against the 2nd respondent alone. The amount claimed by the petitioner is excessive and exorbitant. Hence, the petition is to be dismissed. 3
5. The 2nd respondent/insurance company got filed a counter resisting the claim of the petitioner and the brief contention of the 2nd respondent is that the tractor and trailer bearing No. AP-21-V-2907 and AP-21-V-2908 which involved in the accident is a goods carriage vehicle and it is meant for the carriage of goods only. At the time of accident, it was carrying unauthorized passengers. The seating capacity of the vehicle is only for driver. At the time of accident, the vehicle was carrying more than one person. At the time of accident, the vehicle was used for the purpose of carrying stones and 2nd respondent issued farmers package policy to the said crime vehicle which is meant for usage of agricultural purpose. However, contrary to the policy, the 1st respondent used the vehicle for commercial purpose and the coolies are not supposed to travel on the goods in the vehicle, as there is no space for travelling coolies in the vehicle. On account of breach of the provisions of the M.V. Act, the 2nd respondent is not liable to pay any compensation. The driver of the tractor and trailer did not possess any valid and effective driving license to drive the offending vehicle. Hence, the petition is liable to be dismissed.
6. On the basis of the above pleadings, the Tribunal settled the following issues for trial:
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(1) Whether the petitioner sustained injuries in a motor vehicle accident which was occurred on 21.03.2006 at about 4.00 pm on account of rash and negligent driving of the driver of the tractor and trailer bearing No. AP-21-V-2907 and AP-21-V-2908, belongs to the 1st respondent and insured with the 2nd respondent? (2) Whether the petitioner is entitled to claim compensation, and if so to what amount and from which of the respondents?
(3) To what relief?
7. During the course of trial before the Tribunal, on behalf of the claimant, he examined himself as PW1 and got marked Exs.A1 to A4. On behalf of respondents, RW1 and RW2 were examined and got marked Exhibits B1 to B5.
8. The Tribunal on hearing both sides and on considering the oral as well as documentary evidence, granted a sum of Rs.47,000/- towards compensation with proportionate costs and interest at 9% P.A. from the date of the petition till the date of realization payable by the respondent Nos.1 and 2 jointly and severally and further with a direction to the 2nd respondent to pay the compensation within a period of 30 days and on such deposit, that the claimant is entitled to withdraw the entire amount.
9. Felt aggrieved of the same, the unsuccessful 2nd respondent filed the present M.A.C.M.A. 5
10. Now, in deciding the M.A.C.M.A., the points that arise for determination are as follows:
(1) Whether the accident occurred was due to rash and negligent driving of the driver of tractor cum trailer bearing No. AP-21-V-2907 and AP-21-V-2908 and whether the petitioner received injuries in the said accident? (2) Whether the petitioner is entitled to claim compensation and if so, from which of the respondents? (3) Whether the award, dated 08.07.2011, is sustainable under law and facts and that there are any grounds to interfere with the same?
Point Nos.1 to 3:
11. P.W.1 before the Tribunal was no other than the petitioner who put forth the facts in tune with the pleadings of his claim petition. Through his examination Exs.A1 to A4 were marked. Ex.A1 was the C.C. of FIR in Cr.No.28 of 2006 of Veldurthy Police Station. Ex.A2 was the C.C. of Wound Certificate. Ex.A3 was the C.C. of M.V.I report. Ex.A4 was the C.C. of Charge Sheet.
12. The representative of the 2nd respondent examined himself as RW1 putting forth the facts in tune with the written statement and through his examination Exs.B1 and B2 were marked. Further, RW2 was examined, who was a Senior Assistant in R.T.O. Office and through his examination Exs.B3 to B5 were marked. Ex.B1 was the policy copy, Ex.B2 was the 6 office copy of the notice issued to the respondent No.1 along with Postal receipt and acknowledgement, Ex.B3 was the Authorization letter, Ex.B4 was the Form No.24B Register of Motor Vehicle (Tractor) and Ex.B5 was the Form No.24 (Trailer).
13. T.V.Sridevi, learned counsel for the appellant, would contend that the main objection of the appellant is that the injured i.e., the claimant was no other than an unauthorized passenger and he claimed that he was a hamali. She would contend that the policy under Ex.B1 did not cover any unauthorized passengers and further it was only a farmer's package policy. There is no dispute that the seating capacity of the tractor is only one that is meant for driver. The petitioner claimed that he travelled on the top of stones in the trailer. Apart from this, the tractor cum trailer was supposed to be used only for agricultural operations in terms of Ex.B1 policy and contrary to that the vehicle was used for commercial purpose i.e., transportation of stones in the trailer. So, there was violation of policy on two counts. One is that, no premium was paid for allowing any person to travel in the trailer or in the tractor, as it was only meant for the driver. Second violation was that the vehicle was not supposed to be used for any commercial purposes such as transportation of stones. When all these contentions were raised, the Tribunal did not consider it 7 properly. However, in the set of circumstances, pay and recovery may be ordered.
14. Learned counsel for the appellant argued on 24.01.2024. As none represented for the respondents the matter is listed today for hearing the arguments of the contesting respondents. One counsel, purporting to be the counsel for the 2nd respondent in the morning time sought adjournment and this Court declined to grant the same. Later, the matter is taken up in the first revised call and the second revised call and even after completion of weekly list work and even when the Court resumed at 2.15 pm., none represented. Hence the matter is being disposed of on merits.
15. Firstly, this Court would like to deal with, as to whether the accident occurred was on account of rash and negligent act of the driver of the tractor cum trailer. PW1 was no other than the injured who claimed to have travelled in the trailer. During chief examination, he put forth the facts in tune with the pleadings. During the course of cross examination, he deposed that he gave a complaint to the police on the same day. He denied that he did not receive any injuries and obtained a false wound certificate. The very suggestion put forth before PW1 on behalf of the 2nd respondent is nothing but baseless. 8
16. A perusal of Ex.A2-certified copy of wound certificate goes to reveal that the petitioner received the fractures. There was no merit on the part of the 2nd respondent to put forth the contention that the petitioner did not receive any injuries. Apart from this, there is no dispute that pertaining to the accident in question, the police registered the FIR in Cr.No.28 of 2006 of Veldurthy Police Station and after due investigation filed a charge sheet in C.C.112 of 2006 on the file of Judicial I Class Magistrate, Dhone against the person by name Boya Sekhar that he driven the tractor cum trailer in a rash and negligent manner and caused death of one person and also caused injuries to the present petitioner. For obvious reasons, the 1st respondent- owner of the tractor did not choose to enter into the witness box to rebut the evidence. Though it is a fact that the claimant travelled in the trailer that itself is not sufficient to say that there was no rash and negligent act. When the driver of the tractor cum trailer allowed a person to travel on the trailer though it was not permissible, he ought to have taken proper care. Hence, the evidence of PW1 remained unrebutted. There was nothing in the evidence of PW1 to disbelieve his testimony. The evidence on record proves that the accident occurred was due to rash and negligent act of the driver of the tractor-cum- trailer. Ex.A2 reveals that the petitioner received grievous 9 injuries. Even the outcome of the investigation in Ex.A4 charge sheet also reveals that the petitioner sustained grievous injuries. Hence, the petitioner was able to prove before the Tribunal that he received injuries, which are grievous in nature, on account of the rash and negligent act of the driver of the tractor-cum- trailer.
17. There is no dispute that the 1st respondent was the owner of the vehicle. The vehicle in question was insured with the 2 nd respondent under Ex.B1 policy. The contention of the 2 nd respondent is that there was violation of policy under two counts. One is that, Ex.B1 did not allow any person to travel in the tractor-cum-trailer except the driver. Another violation is that, Ex.B1 policy was meant for farmer's package policy, as such, the vehicle should not have been used for any commercial purpose. RW1, the representative of the 2nd respondent, entered into the witness box and deposed the same. The claimant got cross examined RW1. He did not challenge the terms and conditions in Ex.B1. RW1 denied that the policy covers the risk of the labour and that there was no breach of any terms of policy.
18. As seen from Ex.B1, it is pertaining to the offending vehicle and the policy runs as farmer's package. Though there is no dispute by virtue of the evidence let in that the trailer can 10 also be used for commercial operations, but the fact remained is that the 1st respondent did not obtain any policy, so as to cover the commercial operations. Ex.B1 was confined to only farmer's package. So, the very usage of the trailer for transportation of stones is nothing but commercial, which is contra to the conditions in Ex.B1. Merely because the trailer can be used for commercial operations, the 1st respondent has no power to use it for commercial operation, when Ex.B1 did not contemplate the same. So, if the 1st respondent allowed the trailer for commercial operations, it will be at his own risk. Apart from this, there is no dispute that seating capacity of the tractor which was pulling the trailer at the time of accident was only one which is meant for driver. So, the claim of the claimant is that he travelled in the vehicle as a hamali. The court has to consider as to whether the act of the 1st respondent in allowing the petitioner to travel in the vehicle, though Ex.B1 did not permit the same is tenable or not. If Ex.B1 is taken into consideration carefully, absolutely, the claimant should not have travelled in the vehicle.
19. Admittedly, the evidence on record reveals that there was violation of policy conditions on two counts, one was that the 1 st respondent did not pay any premium for travelling by any coolies in the trailer. In fact, trailer will not have any seats. 11 Seating capacity would be only for the driver of the tractor which was only one. Second violation was that contrary to Ex.B1 conditions, vehicle was put for commercial use.
20. Learned counsel for the appellant would rely upon the judgment of Hon'ble Supreme Court in Shivraj Vs. Rajendra and another1 and contended that the Court has power to order pay and recovery. This Court has gone through the same. The High Court concluded that the insurance company cannot be made liable to compensate the owner of the trailer. Appeal filed by the insurance company was allowed by the High Court. Appellant assailed the judgment of the High Court before the Hon'ble Supreme Court. The Hon'ble Supreme Court observed that the appellant travelled in the tractor as a passenger even though the tractor can accommodate only one person namely the driver. While holding so, the Hon'ble Supreme Court observed that the High Court ought to have directed the insurance company to pay the compensation amount to the claimant with a liberty to recover the same from the tractor owner, in view of the consistent view taken by the Hon'ble Supreme Court in several decisions. While holding so, the Hon'ble Supreme Court partly allowed the appeal to the extent of directing the insurance company to pay the compensation 1 AIR 2018 SC4252 12 amount determined by the Tribunal which was affirmed by the High Court in the first place and to recover the same from the owner of the offending vehicle. The facts in the aforesaid case are fully applicable to the present case on hand.
21. Now, coming to the quantum of compensation, though the petitioner claimed a sum of Rs.1,00,000/-, the Tribunal took into consideration the six injuries sustained by the petitioner. Out of six injuries received by the petitioner, injury Nos.4 and 5 are grievous and they are nothing but fractures and other injuries are simple in nature. The Tribunal with due regard of the nature of the injuries according to Ex.A2 and A3, awarded a sum of Rs.12,000/- towards simple injuries and Rs.30,000/- towards fracture injuries totally Rs.42,000/-.The Tribunal awarded Rs.3,000/- towards pain and suffering. The Tribunal declined to grant any medical expenditure because the petitioner was given treatment in a Government Hospital. Tribunal awarded a sum of Rs.2,000/- for the loss of earnings during the period of hospitalization. Thus, the Tribunal totally awarded a sum of Rs.47,000/- which is reasonable in the set of circumstances.
22. Insofar as the contention of the 2nd respondent that there was violation of policy conditions is concerned, in the considered view of this Court, the Tribunal did not appreciate the contentions in proper perspective. In the light of the findings 13 made by this Court as above, the petitioner is entitled to compensation from the 1st respondent but a direction is to be given to the 2nd respondent to pay the compensation to the petitioner and to recover the same from the 1st respondent.
23. In the result, the M.A.C.M.A is partly allowed only to the extent of modification of the award of the learned IV-Additional District Judge-cum-Motor Accidents Claims Tribunal, Kurnool dated 08.06.2011, by directing the 2nd respondent/appellant/insurer to pay the compensation to the petitioner i.e., a sum of Rs. 47,000/- with interest as awarded by the Tribunal and to recover the same from the 1st respondent-owner of the offending vehicle. Under the circumstances no order as to costs.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt.02.02.2024.
MH 14 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU M.A.C.M.A.No.1056 of 2016 110 Date: 02.02.2024 MH