Andhra Pradesh High Court - Amravati
Icici Lombard General Insurance Co. ... vs Kakkala Madhavi, E.G. District 6 Ots on 31 January, 2022
HON'BLE Dr. JUSTICE K. MANMADHA RAO
MACMA No.1146 of 2011
JUDGMENT :
Challenging the award and decree dated 31.08.2010 passed in M.V.O.P.No.773 of 2007 on the file of the Chairman, Motor Vehicle Accidents Claims Tribunal-cum- Principal District Judge, East Godavari, Rajahmundry (for short "the Tribunal"), the present appeal is preferred by the 3rd respondent in the O.P. i.e., the ICICI Lombard General Insurance Company Limited.
2. For the sake of convenience, the parties will hereinafter be referred to as arrayed in O.P.
3. The claimants, who are the wife, children and the mother of the deceased Kakkala Rambabu filed application under Section 163-A of Motor Vehicles Act, 1988 claiming compensation of Rs.5,00,000/- for the death of the deceased, in a road accident which took place on 18.6.2007 at about 11.30 a.m. It is stated that on a fateful day i.e., on 18.6.2007 at about 11.30 a.m., the deceased Kakkala Rambabu and some other coolies loaded mud on the trailer bearing registration No.AP 05 AM 8279 and he sat on the mud load and travelled to unload the mud in the Palmolive field of the 2nd respondent situated behind Sree Venkateswara Tiles Works factory at Neeladriraopeta, Gandepalli Mandal, whereas the 1st respondent drove the vehicle in a rash and negligent manner at high speed and 2 the tractor in that process ran over matti dibba (stack of earth) in the field of the 2nd respondent, as a result of which, one electric wire touched the head of the deceased and hence the deceased fell down from the tractor and died on the spot and on a report given a case was registered as in Cr.No.161 of 2007 under Section 304-A IPC against the 1st respondent on the file of Gandepalli Police Station. It is also stated that the deceased was doing coolie work and earning Rs.2,500/-. In view of the sudden death of the deceased, the claimants are put to loss which made them to file the present application.
4. The respondents No.1 and 2 have remained ex parte. The 3rd respondent has filed written statement denying the material pleas taken by the petitioners and putting the petitioners to establish the same strictly and specifically and setting out its defences respectively.
5. Basing on the above pleadings, the Tribunal framed the following issues:
1) Whether the accident was due to rash and negligent driving of the tractor and trailer bearing registration No.AP05AM 8279 and AP05TT 1799?
2) Whether the petitioners are entitled for compensation amount as claimed? If so, from which of the respondents?
3) To what relief?3
6. In support of their claim, the petitioners got examined PWs.1 and 2 and got marked Exs.A1 to A4 and Exs.X1 to X3. For the contesting respondent, RWs.1 to 3 were examined and Exs.B1 to B5 were marked.
7. After considering the oral and documentary evidence, the Tribunal held that that the respondents no. 1 to 3 jointly and severally liable, whereas the 2nd respondent is vicariously liable for the act of the 1st respondent (subject to relevant income Tax Laws) to pay Rs.3,32,500/- as compensation with proportionate costs and interest @ 7.5% per annum from the date of petition till the date of realization. Challenging the same, the present appeal is filed by the Insurance Company-3rd respondent.
8. Heard Sri Kota Subba Rao, learned counsel appearing for the appellant and Sri J. Sreenivasa Rao, learned counsel appearing for the respondents.
9. Learned counsel for the appellant submits that the tribunal has failed to see that the labourers who are loading and unloading are only covered and they are not allowed to sit and travel on the vehicle involved in the accident and the tribunal would have treated the labourers and un-authorized passengers at the time of accident and also failed to say that except the driver no other person is allowed to sit and travel on the vehicle at the time of accident. He further submits that the tribunal has failed to see that the death of the 4 deceased is not due to rash and negligent driving and it is only due to electric shock and also negligence by sitting on the load of the vehicle by the deceased.
10. Learned counsel for the appellant submits that the vehicle was not being used for agricultural purpose against the policy terms and hence, the insurance company is not liable to pay any compensation. Learned counsel has relied upon a decision reported in New India Assurance Company Limited, Ongole Vs. Sandepudi Mariyamma and others1. He submits that when mud was being transported and the accident took place in the agricultural field, it cannot be said that it was not for agricultural purpose and the decision relied upon is relating to carrying of Napa slabs in a vehicle to be used for agricultural purpose and hence the observations made therein are not applicable to the present case.
11. Further, learned counsel for the appellant submits that there is no dispute with regard to the accident took place but Ex.B1 provides that the 3rd respondent/appellant herein issued insurance policy for the vehicle and it was in force by the date of accident. Further there is no dispute with regard to the other aspects.
12. Sri Kota Subba Rao, learned counsel for the appellant has mainly relied upon a judgment of this Court reported in the New India Assurance Co. Ltd., vs. Neeradi 1 2003 (2) ALD 921 5 Kaspa Sattavva and another2 and submits that the tractor and trailer are not meant for carrying coolies and hence the insurance company is not liable to pay any compensation. He mainly contends that the award passed by the tribunal is on high side and is liable to be reduced.
13. Per contra, Sri J. Sreenivasa Rao, learned counsel for the respondents/claimants submits that there is no error in the award passed by the tribunal.
14. I have gone through the material on record and observed that as per the permit no coolie is entitled to travel in the trailor. The testimony of RW.2 is that he has been working as Manager-Legal in the 3rd respondent/appellant company. In his cross-examination, it is his evidence that additional premium was collected for the driver, cleaner and coolies of the vehicle and six coolies were entitled to travel in the tractor. In his subsequent cross-examination he has deposed that by e-mail he requested their Bombay office (head office) about the cover note concerned in the case by them, replied that they could not trace out the same. In fact, as per the copy of policy shown premium of Rs.150/- was paid to cover risk of cleaner/conductor/coolies and Rs.900/- was paid towards risk of passengers which agree with the contents of the cover note Ex.A4. In other words, it is clear that they are not contradictory to each other. Further, in order to examine correctly Ex.A4, the 3rd 2 CMA No.3892 of 2002, dated 10.12.2008 6 respondent/appellant should have filed relevant original cover note. It is not suffice to say that it could not be produced because it is not traced. In fact this lacuna is not important when the contents of Ex.A4 in a way agree with the contents of Ex.B1.
15. Ultimately, there is no dispute that the 6th respondent herein is the driver, the 7th respondent herein is the owner and the appellant herein is the insurer of the vehicle. Ex.B1-Certificate-cum-policy provides that the appellant issued insurance policy for the vehicle and it was in force by the date of accident. Further no dispute is raised about the other aspects in the counter ultimately. Further, the 7th respondent is vicariously liable for the act done by its driver and the appellant has no indemnify it as its insurer.
16. Learned counsel for the appellant relied upon a case of Oriental Insurance Company Ltd., v. Brij Mohan and Ors.3, wherein it was held that the insurance company has no liability. Irrespective of the fact whether the claim has been made under the provisions of Workmen's' compensation Act or the provisions of Motor Vehicles Act, it is needless to observe that the liability cannot be fastened against the Insurance Company when there is violation of the policy conditions. Therefore, the liability cannot be distinct and at the same time, it cannot vary from the provisions itself for the reason that the liability can as well 3 MANU/SC/7682/2007 7 be fastened subject to the coverage of risk as well as the subsistence of the policy by the date of incident and violations of the policy conditions. In this view of the matter, the contention of the learned counsel for the claimants that the decision relied on by the learned Standing Counsel for the Insurance Company, cannot be made applicable to the facts of the case on hand, cannot be sustained.
17. For the foregoing reasons and a perusal of the impugned order reveals that the Tribunal passed a well considered order by taking into consideration all the aspects and as against the claim of Rs.5,00,000/-, the Tribunal awarded an amount of Rs.3,32,500/- with interest @ 7.5% per annum and the respondents no.1 to 3 are liable to pay compensation. Therefore, there is no infirmity and illegality in the order of the tribunal and the appeal is liable to be dismissed.
19. Accordingly, the M.A.C.M.A. is dismissed. No order as to costs.
Miscellaneous petitions pending, if any, in the Appeal shall stand closed.
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Dr. K. MANMADHA RAO, J
Date : -01-2022
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HON'BLE Dr. JUSTICE K. MANMADHA RAO
MACMA No.1146 of 2011
Date : -01-2022
Gvl
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