Andhra Pradesh High Court - Amravati
Kankipati Salmon And 3 Others vs Dasari Ramaiah And 2 Others on 3 February, 2023
HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
MACMA No.59 of 2012
JUDGMENT:
1. Aggrieved by the order dated 13.06.2011 in MVOP No.129 of 2010 passed by the Chairman, Motor Accidents Claims Tribunal- cum- I Additional District Judge, Ongole (for short 'the Tribunal'), the claimants have preferred this appeal for not fastening liability on the 3rd respondent/insurance company.
2. The parties will be referred to as arrayed in the MV OP for convenience.
3. The petitioners filed the application under Sections 166 of the Motor Vehicles Act for compensation of Rs.6,00,000/- for the death of one Kankipati Ramadevi (hereinafter referred to as 'deceased'), who died in a motor vehicle accident.
4. It is the claimant's case that the deceased was 30 years and she was earning Rs.6,000/- per month by doing coolie work. On 09.03.2010 in the morning, the 1st respondent, the driver of tractor bearing No.27Y3706 and trailer bearing No.AP27Y3707 (hereinafter referred to as 'offending vehicle') was carrying the deceased and others as coolies to the Bengalagram field of one 2 MACMA_59 of 2012 Kamma Lakshmi Narayana for coolie work of loading Bengalgram into trailer and unloading later. The 1st respondent drove rashly and negligently at 11.30 AM when they reached the tobacco field of Damacharla Sreenu, the offending vehicle turned turtle. As a result, the deceased and others fell. The deceased sustained fatal injuries and died on the spot. A case is registered against the offending vehicle's driver. As per the insurance policy for the offending vehicle, the liability of six coolies for loading and unloading operation, is covered.
5. Respondents 1 and 3 filed counter-denying the allegations in the petition. The 2nd respondent adopted the same. In the counter of respondents 1 and 3, it is stated that the 1st respondent was very slow at the time of the accident; he was a well-experienced driver; had a valid driving license to the driver; the insurance policy covered the tractor and trailer.
6. Based on the pleadings, the Tribunal has formulated relevant issues. On behalf of the claimants, PWs.1 to 3 got examined and marked Exs.A.1 to A.5; on behalf of respondents, RW.1 got examined and marked Exs.B1 to B7. 3rd respondent was permitted to take all the defence available to 2nd respondent per 3 MACMA_59 of 2012 the orders passed in IA.No.505 of 2011 under Sections 149 and 170 of the MV Act.
7. After evaluating the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle's driver. The deceased died due to injuries sustained in the accident. The Tribunal granted a compensation amount of Rs.3,69,500/- with interest at 6% p.a., from the date of petition till the date of realization against respondents 1 and
2. The petition is dismissed against the 3rd respondent. The respondents do not assail the said findings of the Tribunal by filing an appeal or cross-objections. As seen from the grounds of appeal, the claimants have not disputed the quantum of compensation awarded by the Tribunal.
8. The learned counsel for the appellants contended that the Tribunal grossly erred in holding that the driver had a non- transport license only and violated the policy conditions; at the time of the accident, the offending vehicle was not carrying any goods. As per the policy terms, the legal liability for coolies is applicable when they are employed for loading and unloading operations. The appellants were engaged as coolies for loading and unloading Bengal gram bags into the offending vehicle. 4
MACMA_59 of 2012
9. Learned counsel for the respondents supported the Tribunal's findings and observations.
10. Now the point for determination is, Whether the Tribunal erred in not fastening the liability on the Insurance Company?
Point:
11. As seen from the grounds of appeal, the appellant's company have not seriously disputed the quantum of compensation awarded. As already observed, there is no serious dispute regarding the manner of the accident. It is unnecessary to refer to the facts relating to the accident.
12. The insurance company contends that, as per the petitioner's case, at the time of the accident, the deceased was travelling in the trailer as a coolie for loading and unloading the Bengal gram in the offending vehicle. The finding of the Tribunal that as per Ex.B4 attested copy of DL Extract, the 1st respondent had a driving license and could drive a non-transport vehicle only. Either party does not dispute the said finding of the Tribunal. The Tribunal observed that there is a violation of the terms and conditions of the insurance policy, for which the driver shall have a transport license. It is the evidence of RW.1 - 5
MACMA_59 of 2012 G. Chandra Sekhar that as per the Ex.B2 registration copy of the tractor and Ex.B3 Registration copy of the trailer, they are registered as transport vehicles for commercial use. To drive the same, the driver must possess a driving license with T&T Transport endorsement. To show that the driver did not have such a license, it relied on Ex.B4 driving license of 1st respondent.
13. In light of the above evidence on record, when the facts and evidence in the instant case are considered, it is not a case of the driver not holding the license at the time of the accident. An identical question came to be considered by the Apex Court in Santalal Vs. Rajesh and others1, in which it was held as follows "the Apex Court has considered the question of whether the holder of a licence for a light motor vehicle can drive a tractor attached to the trolley carrying goods and also whether a separate endorsement is required authorizing him to drive such a transport vehicle.
We have answered the question that a driver with a licence to drive a light motor vehicle can drive such a transport vehicle of L.M.V. class. And there is no necessity to obtain a separate endorsement since the tractor attached to the trolley was a transport vehicle in the light of the motor vehicle category. Hence, there was no breach of the conditions of the policy.
1 2017 A.I.R. (civil 734) 6 MACMA_59 of 2012 Accordingly, in view of the answer given to reference by the three-Judge Bench of this Court in Mukund Dewangan vs Oriental Insurance Co. Ltd. etc. (Civil Appeal No.5826 of 2011), these appeals have to be here allowed. The right given to the insurer to recover the amount from the owner is hereby set aside. The liability is held to be joint and several of owner, driver and insurer."
By following the principles in the said decision, this Court finds that the contention raised by the respondent/insurance company cannot be accepted.
14. It is the contention of the insurance company that no premium was paid to cover the risk of the coolies. So the insurance company is not liable to pay the compensation amount. Regarding the contention raised by the insurance company, I have carefully gone through the terms of the policy. As per the evidence of RW.1 - G. Chandra Sekhar, Legal Executive, the 3 rd respondent issued Ex.B1 policy under framers package product to respondent NO.2 regarding tractor and trailer bearing No.AP27Y3706 and AP27Y 3707 vide policy number OG-10-1816- 5001-00000677 valid from 12-Nov-2009 to 11-Nov-2010. The said policy was in existence as of the alleged accident date. It is the evidence of RW.1 that the deceased and others were travelling in the offending vehicle as unauthorized passengers. 7
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15. The 1st petitioner examined as PW.1, the deceased's husband; PW.1 stated in his cross-examination that one Kamma Lakshmi Narayana engaged the offending vehicle with coolies on hire for coolie work, and he does not know the conditions of the policy. Coming to the evidence of RW.1, in this regard, Ex.B1 policy does not cover the risk of unauthorized passengers in the tractor and trailer. In the cross-examination, RW.1 stated that even after perusal of the Ex.B6 policy handed over to him, he could not say whether it was genuine or not. He admitted that the policy referred to in Exs.B1 and B6 are one and the same and which are issued from 12.11.2009 to 11.11.2010. The name of the insured persons in Exs.B1 and B6 policy copies is one and the same. He admitted that Ex.B1 product is a 'framers' package. RW.1 admitted that the cover note numbers in Exs.B1 and B6 are one and the same the same, and the vehicle description in Exs.B1 and B6 policy copies are noted as the same. He further deposed that if there is any necessity, he will enquire with the Ongole Branch office of 3rd respondent insurance company to know about the genuineness of the Ex.B1 policy. He admitted that as per Ex.B1, it was issued in the Ongole Branch of 3rd respondent insurance company. He denied the suggestion that he knows all 8 MACMA_59 of 2012 the facts of Ex.B1 policy but intending to suppress the fact; he is deposing falsely. He denied the suggestion that 3rd respondent created Ex.B1 policy. However, the claimants contended that Ex.B6 policy was issued by the insurance company, and the Ex.B1 policy was produced to defeat the claim of the claimants. Except for relying on Ex.B6, the claimants have not taken further steps. In view of the same, this Court is inclined to consider Ex.B1 policy to decide the insurance company's liability.
16. As per Ex.B.1-insurance policy, an amount of Rs.550/- was collected attached trailer and others for one trailer; L.L. to person for operation/maintenance for one person.
17. A three-Judge Bench of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs Baljit Kaur and Others 2 , 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 passengers is not covered under the policy. There is a breach of 2 2004(2) JLJ 127 9 MACMA_59 of 2012 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 interests 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.
18. In Shivaraj vs Rajendra 3 , the Hon'ble Apex Court, in the following facts of the case, held that ".....the High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger who was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the tractor's owner. That conclusion reached by the High Court, in our opinion, is unexceptionable in the present case.
.....At the same time, however, in the facts of the present case, the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with the liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs 3 2018 Law Suit (SC) 853 10 MACMA_59 of 2012 Swarna Singh & Others 2004 3 SCC 297 1, Mangla Ram Vs. Oriental Insurance Co. Ltd. 2018 5 SCC 656, Rani & Ors. Vs. National Insurance Co. Ltd. And others 2018 9 Scale 310 including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. 2017 4 SCC 796. In other words, the High Court should have partly allowed the appeal preferred by respondent No.2. therefore, the appellant may get relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with the liberty to recover the same from the tractor owner".
19. In Shamanna and another Vs. The Divisional Manager The Oriental Insurance Co. Ltd. and Ors.4, the Apex 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(2009) 8 SCC 785) which doubted the correctness of the decisions in the exercise of 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, 4 Civil Appeal No.8144 of 2018 11 MACMA_59 of 2012 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 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 exonerates the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside, the award passed by the Tribunal is restored".
20. In United India Insurance Company Limited Vs. Tam Tam Venkata Reddy and others5, it observed that, ".....Admittedly all the claimants who were travelling in the vehicle were injured because of the accident, and only a trump card for the Insurance Company order to get absolved from the liability is a violation of the terms and conditions of the policy. This ground is not available for the Insurance Company to deny compensation to the injured, who are third parties, in view of the law laid down by the Apex Court in the decisions reported in New India Assurance Co. Ltd. v. Kamla, 2001 (3) A.L.D. 24 (S.C.): 2001 ACJ 843, United India Insurance Co. Ltd. v. Lehru, 2003 (3) A.L.D. 20 (S.C.) : (2003) 3 SCC 338 and N.I v. Baljit Kaur, 2004 (1) ALD 98 (SC) :
2004 (1) Scale 124".
"......If all the above three judgments are read together, the intention of the Apex Court though under different contexts is crystal clear i.e, even if there is violation of the terms and conditions of the policy, either by way of insured vehicle being driven by a driver not possessing valid licence or the insured vehicle carrying gratuitous passengers, or violation of the terms and conditions of the policy in any other manner, the liability of the insurer to pay compensation to the third party - injured, does not cease. At best, the insurer after paying the compensation to the injured can later recover the same from the insured, by proving the alleged breach of policy 5 2004 (2) ALD 775 12 MACMA_59 of 2012 conditions since the accident occurred prior to 3.12.2002 i.e, the date of the judgment in Asha Rani's case".
21. Coming to the instant case, the offending vehicle's owner paid an additional premium for trailer to cover the L.L. to person for operation and maintenance for one person. The insurance company is bound by the terms of the contract.
22. 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 the policy is restricted to indemnify the insured in respect of the claim made by third parties, the owner of the goods, or an authorized representative who travels in the goods vehicle along the goods.
23. According to my opinion, even a worker who travels in the vehicle to load and unload Bengal gram may be considered his authorized representative of the owner of the goods travelling in the offending vehicle as a third party. On that ground, the Insurance Company is liable to pay compensation, as a statutory liability, to the third party who was travelling as a worker in the offending vehicle along with the goods being his authorized representative of owner carried in the vehicle. So, on that ground, the insurance company cannot deny the liability of 13 MACMA_59 of 2012 workers travelling in the offending vehicle at the time of the accident.
24. The evidence on record shows that the deceased was proceeding in the offending vehicle, though 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's owner, as there is no seating provided to the worker/employee in the trailer.
25. In the light of the law laid down by the Apex Court and High Court, this Court finds that the contentions raised by the claimants that the third respondent/ Insurance company can be fastened with the liability by paying the amount to the appellants and recovering the same from the owner of the offending vehicle are sustainable.
26. As a result, the appeal is allowed without costs by modifying the award passed by the Tribunal by directing the 3rd respondent/insurance to pay the compensation awarded by the Tribunal along with interest, thereon to the claimants at the first instance. Thereafter it shall recover the same from the owner of the offending vehicle without initiating separate proceedings by filing Execution Petition before the Tribunal. Except for 14 MACMA_59 of 2012 modifying the above, the award passed by the Tribunal holds good in all other aspects.
27. Miscellaneous petitions pending, if any, in this appeal shall stand closed.
------------------------------------- T. MALLIKARJUNA RAO, J Dt.03.02.2023.
KGM