Andhra HC (Pre-Telangana)
New India Assurance Company Limited vs Gude Alias Avula Narasimhulu And Others on 2 August, 1999
Equivalent citations: 2001ACJ1706, 1999(5)ALD528, 1999(5)ALT670, 1999 A I H C 4406, (2001) 3 ACJ 1706, (1999) 5 ANDH LT 670, (1999) 5 ANDHLD 528, (2000) 2 ACC 284
Author: Y.V. Narayana
Bench: Y.V. Narayana
JUDGMENT
1. These two CMAs. have been preferred by the Insurance Company against the common order passed OP Nos.268 of 1993 and 271 of 1993 respectively on the file of the Motor Accidents Claims Tribunal, Cuddapah, dated 28-10-1997. The above OPs. were filed claiming compensation under 'no fault liability' under the provisions of the Motor Vehicles Act.
2. A brief account of the accident which gave rise to the filing of the aforementioned OPs is as follows :
On 26-1-1993 at about 2.00 p.m., on Cuddapah-Rayachoty road near Bandaplli, the tractor bearing Registration No.AP 04-T-1993 belonging to the 3rd respondent herein (R1 in the OPs.) was driven in a rash and negligent manner by its driver in high speed and when he tried to give way to an RTC bus which was coming behind, due to the high speed of the tractor, the driver of the tractor could not control the tractor. As a result, the tractor turned turtle and some of the passengers who were travelling in the tractor received injuries and three persons died. The persons who died in the accident are-
(1) Glide @ Avula Anjaneyulu; (2) Glide Dasanna; and (3) Sanigala Yerra Bayanna. The legal representatives of the aforementioned deceased persons filed OPNos.268 of 1993, 270 of 1993 and 271 of 1993 claiming compensation under 'no fault liability'. They also filed OP Nos.269 of 1993, 274 of 1993 and 273 of 1993 respectively claiming compensation under 'fault liability'. While so, the injured persons filed OP Nos.417 of 1993, 418 of 1993, 419 of 1993, 549 of 1993, 548 of 1993, 550 of 1993 claiming compensation for the injuries sustained by them under 'fault liability'. The Tribunal conducted common enquiry in all these OPs. and passed common order on 28-10-1997, holding on issue No. 1 in all the OPs. that the motor accident was due to the fault of the driver of the tractor of the 1st respondent-owner. On issue No.2 in all the OPs. which were filed claiming compensation under 'no fault liability', the Tribunal awarded compensation of Rs.25,000/- to each of the claimants but, however, ordered that the said compensation amount shall be part and parcel of the compensation that is awarded under 'fault liability' in the other OPs. In the OPs. which were filed by the claimants of the deceased persons seeking compensation under 'fault liability' (i.e., OP Nos. 269/93, 274/93and 273/93), the Tribunal held that the claimants arc entitled to compensation under this head also and accordingly awarded a sum of Rs.1,00,000/-, Rs.1,20,000/- and Rs.1,55,000/- respectively. The Tribunal also awarded compensation to the injured person also who filed OP Nos.417, 418, 419, 547, 548 and 550 of 1993 under 'fault liability'." As already stated, these two CMAs. have been filed against the award of compensation to the claimants in OP Nos.268 and 271 of 1993, who are the legal representatives of the deceased person namely Glide @ Avula Anjaneyulu and Sanigala Yerra Bayanna respectively under no fault liability.
3. It is contended by the learned Counsel for the appellant-Insurance Company that the vehicle in question is meant for agricultural purposes only and the Insurance Policy issued for the said vehicle covers the liability, if any, only if the vehicle is met with an accident while attending to agricultural operations. In this case, the vehicle met with an accident while carrying passengers, which is prohibited under the contract of insurance and, therefore, the insurer cannot be made liable. It is further contended that the insurer cannot be fastened with any liability under 'no fault liability' when it is not liable for fault liability. In support of his contention, the learned Counsel place reliance upon a judgment of the Apex Court, reported in National Insurance Company Limited v. Jethu Ram and others, .
4. In the instant case, the accident took place on 26-1-1993. On that day, the tractor in question, which was carrying one Gude @ Avula Anjaneyulu (deceased in OP Nos.268 and 269 of 1993) and Sanigala Yerra Bayanna (deceased in OP Nos.270 and 274 of 1993) and some other persons, turned turtle and as a result of which three persons, including the aforementioned two persons, died and some others received injuries. It is the case of the claimants in OP Nos.268 and 269 of 1993 that the deceased person, namely, Gude @ Avula Anjaneyulu was travelling in the crime vehicle as cooly to unload the bricks. While so, it is the case of the claimants in .OP Nos.271 and 273 of 1993 that the deceased person, namely, Sanigala Yerra Bayanna was travelling in the vehicle along with the ground-nut bags by paying the fare. In OP Nos.268 and 269 of 2993, the Insurance Company pleaded that the deceased was not a cooly and he was travelling as a paid passenger. In OP Nos.271 and 273 of 1993, since the claimants themselves pleaded that the deceased person therein was travelling in the crime vehicle as paid passenger, the Insurance Company pleaded that the Insurance Company was not liable to pay any compensation as the tractor, which is meant for carrying on agricultural operations, its use for purposes other than the purpose for which it is meant amounts to violation of the conditions of contract of Insurance Company and, therefore, the insurer is not liable to pay any compensation. But, at the outset, it must be pointed out here that the crime vehicle in this case is a tractor. A tractor is used only for carrying on agricultural operations in fields. It is not supposed to be used either as passenger vehicle or as goods vehicle on high roads. In this case, admittedly, the tractor was used as passenger vehicle, which was carrying on as many as eight persons, among whom three persons died and the remaining persons received serious injuries. Some of the claimants even admitted that they travelled on the tractor by paying fare and, of course, some claimants contended that the victims travelled in the crime vehicle as coolies. But, when once the crime vehicle is not authorised to carry passengers, it is insignificant to find out whether the victims travelled as fare-paid passengers or whether they travelled as gratuitous passengers. In other words, the capacity of the passengers makes no difference, insofar as the insurance coverage is concerned. The ultimate conclusion would be that since the tractor was used for the purpose other than the purpose for which the vehicle was insured, the Insurance Company cannot be fastened with any liability in the event of the vehicle getting involved in any accident and causing injury or death to any third parties, like the passengers in this case. Now, the question is whether such an insurer is liable to pay compensation for the deaths or injures caused to any third persons like the victims in this case even under 'no fault liability' principle under the Provisions of 140 of the Motor Vehicles Act, 1988 (i.e., New Act). The Apex Court has answered this question in the negative in the decision National Insurance Company Limited v. Jethu Ram (supra), wherein the Supreme Court had an occasion to examine the provisions of Sections 92-A and 92-B of the old Motor Vehicles Act, which are exactly identical to the provisions of Section 140 of the New Act. The relevant paragraph is extracted below:
"On a close scrutiny of the aforesaid provisions, we do not find anything contained therein which would suggest that the liability which accrues under the provisions of Section 92-A has to be borne by the insurer even if it is ultimately held that under the policy of insurance the insurer is not liable to pay the compensation in question. In our considered opinion the Tribunal and the High Court have misread the aforesaid provisions of the Motor Vehicles Act. In the aforesaid premises the impugned judgment of the Tribunal and High Court cannot be sustained so far as it relates to the liability of the insurer arising under Sections 92-A and 92-B of the Act. These appeals are allowed. The insurer having paid the amount under the aforesaid provisions is entitled to get it reimbursed from the owner."
5. In view of the above-mentioned judgment of the Supreme Court, it must be held that the Insurance Company in these appeals, having been found that it is not liable to pay any compensation under the policy of insurance because of the fact that the crime vehicle was not used for the purpose for which it was originally insured with the appellant-insurance Company, is not liable to pay any compensation even under the fault liability principle also. Therefore, the awards passed in OP Nos.268 and 271 of 1993 are liable to be set aside to the extent of the liability of the Insurance Company. Consequently, it must be held that, the insurer i.e., appellant is entitled to recover back those amounts which were paid to the victims in these appeals, under the fault liability principle, from the owner of the crime vehicle.
6. In the result, the CMAs. are allowed and the awards passed in OP Nos.268 and 271 of 1993 are hereby set aside to the extent of the liability of the appellant-Insurance Company. The appellant in these appeals is entitled to recover the amounts paid to the claimants under no fault liability principle from the owner of the crime vehicle. No costs.