Andhra HC (Pre-Telangana)
The New India Assurance Company Ltd., ... vs Doredla Satyanarayana And Others on 10 June, 1997
Equivalent citations: 1998ACJ952, AIR1997AP410, 1997(5)ALT219, AIR 1997 ANDHRA PRADESH 410, (1997) 5 ANDH LT 219, (1998) 1 TAC 84, (1997) 5 ANDHLD 32, (1997) 2 LS 366, (1998) 2 ACJ 952
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
ORDER D. Reddeppa Reddi, J.
1. The New India Assurance Company Limited, represented by its Branch Manager, Khammam, the insurer of the lorry bearing No. ATK 9543 has preferred these two appeals under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') against the common judgment dated 28-3-1990 in O.P. Nos. 456/88 and 637/88 on the file of the Motor Accidents Claims Tribunal (District Judge). Khammam, directing it to pay the claimant in O.P. No. 456/88 a sum of Rs. l,40,000/- and the claimants in O.P. No. 637/88 a sum of Rs. 3,28,500/-.
2. The petitioner, namely, Dorredla Satyanarayana in O.P. No. 456/88 is the driver of the insured vehicle. The petitioners in O.P. No. 637/88 are the widow, minor children, brothers, sister and father of Ponnapolu Venkateswara Rao, the owner of the insured lorry. The accident occurred around 4 a.m. on 8-5-1988 at the outskirts of Wyra on the route Madhira-Wyra, resulting in grievous injuries to the driver and instantaneous death of the owner, who was also travelling in the vehicle. The applications for compensation were filed under Section 110-A r/w Section 92-A of the Motor Vehicles Act, 1939 which was repealed by Section 217 of the Act that came into force w.e.f. 1-7-89.
3. The petitioner in O.P. No. 456/88 laid a claim for Rs. 1,40,000/- with the following averments: He was a driver by profession. Having drivirtg licence No. 988/K/80 valid up to 12-3-1989. He was aged 25 years as on the dale of accident. He was under the employment of late Ponnapolu Venkaleswara Rao, the onwer of the lorry bearing No. ATK 9543 on a salary of Rs.-1000/- per month. At the fateful lime, me lorry-was proceeding from Madhira towards Wyra and he was driving the same and the owner was sitting by his side in the cabin. The lorry went of the road and dashed against a tree by the side of the road when he swerved the vehicle towards right so as to save a buffalo that was found on the road. He was struck between the sneering and the body of the lorry. His legs were completely crushed. The owner of the lorry who was sitting in the cabins died on the spot. The vehicle was badly damaged. He sustained fracture to both legs. He was shifted, to the. Government Headquarters' Hospital,at Khammam. Later, he was shifted to M.G.M. Hospital at Warangal, where he had undergone operations twice. Skin grafting was also done. Fractures were not properly united. He has become | permanent disabled, incapable of earning anything.
4. The claimants in O.P. No. 637/88 laid their claim for Rs. 4,15,000/- with the following averments. The deceased, namely. Ponnapolu, Vehkateswara Rao, aged 26years. was the owner-cum-driver of the lorry hearing No. ATK 9543. On 8-5-1988 he boarded the lorry which was proceeding from Tangututu in Prakasham District to Kamalapuram in Warangal District at Kanchikacherla along with one bag of rice to' deliver the same to his friend Gunala Venkala Narasimha Reddy at Kothagudem. Thus, he was travelling in the lorry as owner of the goods Around 4 a.m. when it reached the outskirts of; Wyra village, the accident occurred due to rash-and negligent driving of the driver resulting in instantaneous death of the deceased. The deceased was earning not less than Rs. 3000/- per month Out of it he was spending not less than Rupees 2000/- per month for the maintenance of his family.
5. The claim in both petitions was resisted by the appellant, mainly on two grounds--(1) The accident was due to rash and negligent driving of either the driver or the owner of the vehicle and, therefore the claimants are not entitled to claim any compensation; and (2) The terms and conditions of the policy do not cover the risk of the owner of the vehicle and as such it is not liable to pay compensation to the claimants in O.P. No. 637/88.
6. As the two claims arose out of the same accident, the two petitions were flubbed and tried together. Evidence was recorded in O.P. No. 456/ 88 and the same was read as evidence in O.P. No. 637/88 also. P.Ws. 1 to 3 were examined and Exs.
A-1 to A-11 and Ex. X-1 were marked on behalf of the claimants. Neither oral nor documentary evidence was adduced on behalf of the appellant, the insurer. The substance of the evidence adduced on behalf of the claimants will be referred to at the appropriate stage. Suffice it to say at this stage that on consideration of the said evidence, the Claims Tribunal awarded compensation of Rs. 1,40,000/- to the claimant in O.P. No. 456/88 and Rs. 3,28,500/- to the claimant:, in O.P. No. 637/ 88. Accordingly, he passed the impugned judgment and decrees. Hence, these appeals by the insurer.
7. Learned counsel on either side have taken us through the relevant portions of the pleadings, evidence and the judgment under appeals. They made elaborate arguments. The submissions of the learned counsel for the appellant are threefold -- One, the driver of the lorry, who is the claimant in O.P. No. 456/88, is not entitled to compensation in view of the finding of the Claims Tribunal that the accident was partly due to his own negligence. Two the claimants in O.P. No. 637/88, the legal representatives of the deceased owner of the vehicle, are not entitled to compensation as the terms and condition of the policy do not cover the risk of the owner of the vehicle. Three, the quantum of compensation awarded is excessive. In opposition, it is contended by Su R. Kameswara Rao, learned counsel for the claimants tiial the accident was entirely due to the negligence of the driver of the vehicle. Me maintains that the issue of negligence on the part of the driver is irrelevant lot the purpose of claim in O.P. No. 456/88 as separate premium was paid under the policy lo cover the legal liability of the insurer lo persons employed in connection with the operation and maintenance of the vehicle in question. Regarding the claim in O.P. No. 637/88. his submission is that the appellant is liable to pay compensation as the deceased owner of the vehicle was travelling in the vehicle as the owner of the goods. He asserts that the quantum of compensation awarded in both the petitions is just and reasonable and in no way excessive. He assets that in view of these rival contentions, the points that emerge for our consideration may he formulated as under:
1. Whether the aecideni was due to negligence of the driver of the lorry, the claimant in O.P. No. 456/88?
2. Whether the claimant in O.P. No. 456/88 is entitled to compensation irrespective of the fact whether the accident was due to his negligence or not?
3. Whether the claimants in O.P. No. 637/88 are not entitled to compensation for the reason that the policy does not cover the risk of the owner, though he was travelling in the vehicle as the owner of the goods?
4. Whether the quantum of compensation awarded in either of the petitions is excessive?
8. Point No. 1 : There is no dispute about the factum of accident. There is also no dispute that the lorry bearing No. ATK 9543 invoked in the accident was insured with the appellant and its policy of insurance was valid as on the date of accident. It is the evidence of the driver of the lorry deposing as P.W.1 that the lorry went off the road and dashed against a tree when he swerved the vehicle to the right on as to save a buffalo found on the road. He admitted that he lost control over the vehicle. This evidence of his is sufficient to conclude that the accident was entirely due to his negligence. Moreover it is the sped the case of the appellant that the accident was due to the negligence of the driver. In this view of the matter, we hold that the accident was entirely due to the negligence of the driver, the claimant in O.P. No. 456/88. This point is answered accordingly.
9. Point No. 2 : The liability of the appellant is governed by the terms and conditional the policy. In the cases on hand, it has been marked as Ex.A-10 Undoubtedly, it covers the liability of the insurer to persons employed in connection with the operation and maintenance of the vehicle.
It is manifesto from Ex.A-10 that an additional premium of Rs. 16/- was paid to cover the risk of a driver and a cleaner. The liability of the appellant in this regard is embodied in endorsement IMT 16 of the policy, which reads as under:
"IMT 16 : LEGAL LIABILITY TO PERSONS EMPLOYED IN CONNECTION WITH THE OPERATION AND/OR MAINTENCE AND/OR LOADING AND/OR UNLOADING OF MOTOR VEHICLES.
10. In consideration of the payment ol an additional premium it is herein understood and agreed that notwithstanding anything contained herein to the contrary the Company shall indemnify the insured against the legal liability under :--
The Workmen's Compensation Act. 1923 and subsequent amendments of that Act prior to the date of this Endorsement the Fatal Accident Act. 1855 or at Common Law in respect of personal injury to any paid driver lor cleaner or conductor or person employed in loading and/or unloading) whilst engaged in the service of the insured in such occupation in connection with the Motor Vehicles and will in addition be responsible for all costs and expenses incurred with its written consent.
The premium having been calculated at the rate of Rs. 8/- per driver (and/or cleaner and/or conductor and/or person employed in loading and/or unloading) the insured shall certify at the expiry of each period of insurance the maximum number of drivers and/or cleaners and/or conductors and/or persons, employed in loading and/or unloading employed at any one time during such period in connection with the Motor Vehicle belonging to him and the premium shall be adjusted accordingly."
It is clear from the above that the appellant has agreed to indemnify the insured (the owner of the vehicle) against his Iiability under the Workmen's Compensation Act. 1923 in respect of personal injury to any paid driver. In the case on hand there is no dispute that P.W.1 was under the employment of the deceased owner of the vehicle as a driver.
11. Employer's liability for compensation is governed by the provisions of Section 1 of the Workmen's Compensation Act. For our purpose only sub-section (1) of See, 3 is relevant. It reads :
"3. EMPLOYER'S LIABILITY FOR COMPENSATION :
(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter.
Provided that the employer shall not be so liable-
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days:
(b) in respect of any injury, not resulting in death, caused by an accident which is directly attributable to-
(i) the workman having been at the lime thereof under the influence of drink or drugs, or
(ii) the wilful disobedience of the workman to an order expressly given, or to a rule expressly framed for the purpose of securing the safety of workmen, or
(iii) the wilful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of" workman."
Admittedly. P.W.1 suffered injuries while he, was driving the vehicle. It is, thus, evident that, injuries were caused to him in the accident that arose out of and in the course of his employment. It is not urged before us, rightly too, that the above provisions absolve the deceased owner of the vehicle of his liability to pay compensation to P.W.1. Therefore, the fact that the accident was due to negligence of P.W.1 cannot be a ground to avoid employer's liability to pay him compensation. It follows. P.W.1 is entitled to claim compensation, though the accident was due to his own negligence. This point is thus answered.
12. Point No. 3 : No doubt, the insurance policy. Ex.A-10, does not cover the risk of the owner of the vehicle. On that score, Sri Kola Subha Rao, learned Counsel for the appellant maintains that the policy indemnifies the owner of the vehicle only against his liability to third parties and it does not cover the liability arising due to bodily injury or death of the owner himself. There is absolutely no dispute about this proposition of law as has been held by a Division Bench of this Court in United India Insurance Company Limited v. Odeti Mallu Bai 1995 Ace CJ 851. Equally settled is the proposition of law that the insurer is not liable to satisfy the claim in respect of death of the owner-insured when the vehicle was driven by himself at the time of accident (See (1) Oriental Fire and General Insurance Company Limited v. Shakuntala Devi. and (2) Oriental Insurance Company Limited v. Chimajirao Kanhojirao Shirke. 1992 Acc CJ 452 (Bom). However this is not the real issue for our consideration in the present case. The real issue is whether the claimants are debarred from setting up claim when the deceased was travelling in the lorry as the owner of goods, though he also happened to be the owner of the said vehicle. It is the specific case of the claimants that the deceased was travelling in the lorry as the owner of goods. In this context, it would be apt to reproduce their plea as set out in the claim petition. It reads as under :
"That on 8-5-198S during the early hours at Kanchikaeherla village the deceased Ponnapola Venkateswara Rao boarded the lorry bearing No. ATK 9543 which was coming with timber load i ,e. Sarvi Karra, from Tangutur. Prakasam District and bound to Kamalapuram village. Warangal District with a view to visit his friend Gurrala Venkata Narasimha Reddy who is residing at Kothagudem, he was also carrying one gunny bag office in the said vehicle with him to give it to his friend. Thus he was travelling in the vehicle i.e., lorry from Kanehikaeherla as owner of the goods i.e. Rice."
The appellant though filed a detailed counter thereto has not denied the above averment. Therefore, we have to accept the plea that at the 'time of accident the deceased was travelling in the lorry as the owner of the goods, though; he happened to be the owner of the said vehicle.
13. Judicial opinion is heavy for the proposition that where compensation is claimed in respect of death or bodily injury caused to the owner of the goods while travelling in a goods vehicle along with his vehicle, the insurer is liable to pay the compensation (See (1) Mecsala Suryanarayana v. Goli Satyavathi. 1979 (1) APLJ (HC) 401; (2) Raghunath Eknath Hivale v. Shardabai Karbhari Kale, (3) Oriental Insurance Company Limited v. Smt. Irrawwa, and (4) Oriental Fire and General Insurance Company Limited v. K. Hanumantha Rao, . In fact, learned Counsel for the appellant is fair enough to admit this proposition of law. However, relying on the fact that the policy of insurance does not cover the owner's risk he reiterates that when the owner of the goods happens to he owner of the vehicle also, file insurer is not liable to pay compensation. We are unable to countenance thin submission in view of the settled principle of law that the terms of the policy of insurance need not he construed strictly and they should he read down to advance the main purpose of the contract, us enunciated by the Supreme Court in Skandia Insurance Company Ltd. v. Kokilaben Chandravadan AIR 1987 SC 1184 in the following terms (at p. 1191) "... When the option is between opting for a view which w ill relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of reading down the exclusion clause in the light of the "main purpose' of the provision so that the 'exclusion clause' highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose."
The above principle has been approvingly quoted by the Supreme Court in B. V. Nagaraju v. M/s. Oriental Insurance Company Limited, Hassan. . In Sohan Lal Passi v. P. Sesh Reddy , the Supreme Court after referring to several beneficial provisions introduced by the Parliament both in the Motor Vehicles Act, 1,939 and the Motor Vehicles Act, 1988 for the purpose of protecting the interest of the claimants, concluded :
"... even Parliament is conscious that right to claim compensation by the claimants in connection with the motor vehicles accidents should not be defeated on technical grounds." (para 11).
14. Let us take a case where the owner of a vehicle walking on a highway was knocked down by his own vehicle driven rashly and negligently by a duly appointed driver having a valid licence.
Is it permissible for the insurer of the said vehicle to avoid its liability to satisfy the claim laid against it by his legal representatives on the ground that the policy of insurance does not cover owner's risk? In our considered view, the answer could only be 'no', particularly in the light of the principle enunciated in Skandias's case. We have, therefore, no hesitation to add that the same principle will apply in all fours to the facts of the case in C.M.A. No. 1041/90.
15. In view of the above, we hold that the claim of the claimants in O.P. No. 637/88 cannot be negatived on the ground that the insurance policy of the vehicle in question does not cover owner's risk. This point is, accordingly, answered.
16. Point No. 4: The claimant in O.P. No:456/ 88 deposed as P.W.1 that he was earning Rs. 1000/- per month as driver and at present he is totally disabled. With regard to his permanent disability, there is the evidence of P.W.2, the doctor, who created him in M.G.M. Hospital, Warangal. It is clear from his evidence that P.W. 1 had undergone three operations and the fracture he has suffered in the left leg was not properly set. He further testified that there was shortening of his left leg by 1/4 to 1/2 inch and his ankle had become stiff. He added that P.W.1was suffering from pain in his left leg. He estmated his disability at 30%, which is permanent. In the light of this expert evidence, we see no justification whatsoever to hold that compensation of Rs. 1,40,000/-
awarded to P.W. 1 under various counts, is in any way excessive. We may add that it is upsurged before us that P.W.1 is not entitled to such amount under the provisions of the Workmen's Compensation Act.'
17. The third claimant in O.P. No. 637/88, the widow of the deceased deposed as P.W.3 that the deceased was aged about 26 years at the time of accident. He was earning Rs. 3000/- per month and out of it he was spending at least Rs. 2,000/- for the maintenance of his family members'. We have absolutely no reason to disbelieve this version of hers. In view of this evidence, by no stretch of reasoning can it be said that the compensation awarded by the Claims Tribunal under all counts, is excessive.
18. For the aforesaid reasons, we find no merit in both the appeals. They are, accordingly, dismissed. However, we make no order as to costs.
19. Appeals dismissed.