Andhra HC (Pre-Telangana)
Oriental Insurance Company Ltd., ... vs Yedla Susheela And Ors. on 4 January, 2002
Equivalent citations: 2002(2)ALD604, 2003 A I H C 621, (2002) 2 ANDHLD 604 (2002) 1 ANDHWR 493, (2002) 1 ANDHWR 493
JUDGMENT G. Yethirajulu, J.
1. The 3rd respondent-insurance company in OP No. 187 of 1993 is the appellant in CMA No. 1014 of 1995. The appellant in CMA No. 500 of 1996 is the claimant in OP No. 187 of 1993. Both the appeals arise out of the order of the Motor Accident Claims Tribunal, Karimnagar dated 23-3-1995 in OP No. 187 of 1993. Since the issues involved in both the appeals are inter-related, these appeals are disposed of by a common judgment.
2. CMA No. 500 of 1996 was filed by the claimant questioning the order on the ground that the quantum of compensation awarded by the Tribunal is low and for not making the insurance company liable to indemnify the owner against third party risk.
3. The insurance company, being aggrieved by the order of the Tribunal, preferred CMA No. 1014 of 1995 contending that the Tribunal, while holding that the insurance company is not liable to indemnify the insurer for the claim under Section 166-C of the Motor Vehicles Act ('the Act' for brevity), ought not to have made the insurance company liable for 'no fault liability" and requested to set aside the order of the Tribunal exonerating the insurance company for 'no fault liability' also.
4. The facts of the case covered by OP No. 187 of 1993 are briefly as follows:
The petitioner-claimant is the mother of the deceased by name Yedla Linga Reddy. The 1st respondent is the driver, the 2nd respondent is the owner and the 3rd respondent is the insurer of the tractor AP-5T-2284. On 20-9-1992 the deceased along with the 1st respondent started from the house of the 2nd respondent on the tractor and when they were going down from a tank bund at about 9-00 a.m., the 1 st respondent drove the tractor with high speed and in a rash and negligent manner, due to which the tractor fell down and the deceased was caught under the tractor and died instantaneously.
5. The deceased, who was 19 years old, was under the employment of the 2nd respondent and engaged to plough the land as a daily wage labour by paying Rs. 50/- per day. He was earning Rs. 1500/-per month. Due to the demise of the deceased, the petitioner-claimant, being the mother of the deceased, claimed a sum of Rs. 1,50,000/- towards compensation under various heads.
6. The 1 st respondent-driver pleaded in his counter that there was no rashness or negligence on his part in driving the tractor and the tractor turned turtle due to the ditches on the tank bund.
7. The 2nd respondent remained exparte.
8. The 3rd respondent filed a counter contending that the petitioner is put to strict proof of the alleged accident. That the deceased travelled by sitting on the mudguard of the tractor, therefore he alone was responsible for his death. It was further averred that the petitioner is no other than the wife of the 2nd respondent and mother of the deceased, that she purposely suppressed the said fact, that the deceased was not a third party to the vehicle and that he travelled in the vehicle in the capacity of owner and not as a labourer engaged for loading or unloading in the tractor. There is no liability for the insurance company under the Act and the insurance policy does not cover the risk of the deceased. Hence the petition is liable to be dismissed against the insurance company.
9. The petitioner in support of her claim examined PWs. l to 3 and marked Exs.Al to A4. Respondents did not adduce any oral evidence, but marked Ex.Bl-A copy of the insurance policy.
10. The Tribunal, after considering the evidence placed by both parties, through order dated 23-3-1995 held that the accident was due to rashness and negligence of the driver and that the petitioner is entitled for a sum of Rs. 92,000/- towards compensation under all the heads and that the respondents 1 and 2 are jointly and severally liable to pay the compensation and the insurance company shall indemnify the insurer to an extent of Rs. 25,000/-under 'no fault liability' out of the total compensation amount.
11. The claimant as well as the insurance company being aggrieved by the order of the Tribunal preferred these appeals.
12. The following are the points, which arise for consideration in these appeals:
(1) Whether the insurance company is not liable for compensation of Rs. 25,000/- under 'no fault liability'?
(2) Whether the quantum of compensation fixed by the Tribunal is low; and (3) Whether the petitioner is entitled for compensation as prayed for against all the respondents?
Point No. 1:
13. The claimant is no other than the wife of the 2nd respondent. The deceased Yedla Linga Reddy was no other than the eldest son of the 2nd respondent and the claimant. On the date of accident the 1 st respondent was driving the tractor and the deceased was travelling on the tractor by sitting on the mud guard. It is an undisputed fact that the 2nd respondent was the owner of the tractor as on the date of accident.
14. The claimant as PW1 stated in her evidence that on the date of accident the deceased went to the field in the same tractor to plough the land of one Mohan Reddy along with the driver. She further stated that the deceased never worked as a labourer under the 2nd respondent.
15. PW2, a person by name K. Mohan Reddy, deposed that on the date of accident he was also travelling along with the deceased. He further deposed that the deceased was going on the tractor for ploughing his own lands, but never worked as a coolie.
16. PW3 one Mr. G. Janardhan Reddy stated that the deceased was a student studying at Karimnagar.
17. The evidence of PWs. 1 to 3 revealed that the deceased was no other than the eldest son of the owner of the tractor and he was never engaged as a coolie to work on the tractor. The deceased was travelling in the tractor by sitting on the mud guard which is not intended for anybody to travel. In the light of the above circumstances the deceased cannot be treated as a labourer or a third party to the accident tractor.
18. In order to arrive at a conclusion regarding the liability of the insurer of the tractor on account of the death of the deceased it is proper to extract the relevant provisions of the Act.
19. Section 147 of the Motor Vehicles Act, 1988 reads as follows:
147. Requirement of policies and limits of liability :--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2),--
(i) against any liability which may be incurred by him in respect of the death of or bodily (injury to any person, including owner of the goods or his authorised representative carried in the vehicle) or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of death of, or bodily injury to, any such employee,--
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation :--For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2)......
(3).....
(4).....
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons".
20. The accident occurred on 20-9-1992. Therefore, as on the date of accident the Act of 1988 came into force.
21. The tractor involved in the accident was intended for agricultural operations. The deceased was neither a coolie nor a driver of the tractor. The insurance policy of the tractor is only an ACT policy and it does not cover any other persons other than the driver and coolies. Though the petitioner averred that the deceased was working as a daily labour, in her evidence as PW1 she stated that the deceased never worked as a coolie. The accident occurred while the deceased was travelling in the tractor and his death may be attributable to the driver of the tractor on account of his negligence, but the deceased does not come under any of the categories in respect of which there is insurance coverage. In the absence of such coverage, the insurance company cannot be made liable to pay compensation. The loss, if any, suffered by the owner cannot be directed to be indemnified by the insurance company. The Tribunal rightly held that the risk of the deceased is not covered by the insurance policy in any capacity, therefore the insurance company would not be liable to indemnify the owner of the vehicle against the claim for the death of the deceased. I do not find any ground to interfere with the finding of the Tribunal on this aspect.
22. The Tribunal relied on a Division Bench judgment of this Court in United India Insurance Co., Ltd., Chittoor v. C.D. Muniratnam Reddy and Anr., (DB), wherein it was observed that the insurance company is not liable to indemnify the owner regarding the payment of compensation. Therefore, the Tribunal held that though the insurance company is not liable to pay compensation payable under Section 166(c) of the Act, it is liable to pay the compensation under Section 140 of the Act for 'no fault liability'. Therefore, the Tribunal directed the insurance company to pay Rs. 25,000/- towards 'no fault liability' compensation to the petitioner.
23. The learned Counsel for the appellant in CMA No. 1014 of 1995 represented that the insurance company cannot be made liable for 'no fault liability' when it was held that the insurance company is not liable to indemnify the loss of the owner in an application under Section 166 of the Act.
24. In New India Assurance Co., Ltd., Cuddapah v. P. Kishore Kumar, 1994(4) ALT 107, a Division Bench of this Court, relying on a judgment of the Supreme Court in National Insurance Co. Ltd. v, Jethu Ram, 1998 (2) ACJ 921, held that if the insurer is not made liable for compensation in the main case, the insurance company cannot be made liable to pay any amount under 'no fault liability'. The Supreme Court in Jethu Ram (supra) held that the liability under Section 92-A of the Act cannot be fixed on the insurance company, if the Tribunal holds that there is no policy of insurance, and the insurance company is not liable to pay the compensation.
25. In New India Assurance Co., Vijayawada v. N. Venkata Subbamma, (DB), another Division Bench of this Court held that the insurance company is not liable for payment of compensation under Section 92-A of the Motor Vehicles Act when there was no insurance coverage, as per the terms and conditions of the policy.
26. Therefore, in view of the settled legal position, the order of the Tribunal fixing the liability on the insurance company for 'no fault liability' is liable to be set aside. Point No. 1 is accordingly answered.
Point Nos. 2 and 3:
27. In CMA.No.500 of 1996 the claim petitioner questioned the quantum of compensation on the ground that it is low and prayed for an order to fix the liability of the insurance company for the entire compensation amount.
28. The Tribunal awarded a sum of Rs. 92,000/- towards compensation to the petitioner on account of the death of her son with interest and costs. The Tribunal considered all the aspects while fixing the quantum of compensation. There is no additional material placed by the petitioner to indicate the compelling circumstances under which the compensation is liable to be enhanced. I am therefore not inclined to interfere with the order of the Tribunal regarding the quantum of compensation.
29. The learned Counsel for the appellant in CMA No. 500 of 1996 represented that since the Tribunal held that the insurance company is liable to pay 'no fault liability' compensation, it shall be made liable to pay the entire compensation amount.
30. In view of the foregoing discussion and findings under point No. 1, I do not find any substance in the plea of the appellant-petitioner. Therefore, the request of the claim petitioner to fix the liability on the insurance company for the entire compensation cannot be acceded to.
31. Point Nos.2 and 3 are accordingly answered.
32. In the result, CMA No. 500 of 1996 is dismissed without costs by confirming the order of the Tribunal dated 23-3-1995 in OP No. 187of 1993.
33. CMA No. 1014 of 1995 is allowed by setting aside the order of the Tribunal fixing 'no fault liability' on the appellant-insurance company, but under the circumstances, without costs.