Andhra HC (Pre-Telangana)
United India Insurance Company Limited ... vs Kurva Yejju Mallamma And 3 Ors. on 19 July, 2006
Equivalent citations: II(2007)ACC607, 2007ACJ1735, 2007(1)ALD364, 2007(2)ALT366
JUDGMENT B. Prakash Rao, J.
1. Heard Sri Ravi Shankar Jandhyala, learned Standing Counsel, appearing for the appellant and Sri K. Venkatesh Gupta, learned Counsel, appearing for the respondent-claimants.
2. This appeal is at the instance of the insurance-company aggrieved against the order and decree in M.V.O.P. No. 293 of 2001 dated 26-11-2002 on the file of the Motor Accidents Claims Tribunal, Kurnool, allowing the petition filed under Sections 140 and 166 of the Motor Vehicle Act claiming compensation, on account of death of the deceased in a motor vehicle accident.
3. The few facts, which are necessary for disposal of this appeal, are that the claimants are the children of deceased Kurva Yejji Bojjanna. In an accident that occurred on 08-05-1999 at about 8-30 pm, the said Bojjanna while getting down from the lorry of respondent No. 4, who is the owner of the vehicle, at Sri Satya Sai School, Kollapur, came under the same lorry due to its rash and negligent driving, due to which he sustained severe injuries to head and other parts of body, and ultimately, succumbed to death on the spot. The police registered a case in Crime No. 29 of 1999. The case of the claimants is that the accident is only due to rash and negligent act on the part of the driver of the lorry, and hence, both the owner and appellant are liable. The deceased, according to the claimants, was aged about 45 years at the time of accident, and hence, they sought for compensation of Rs. 1,50,000/- (Rupees one lakh and fifty thousand only).
4. The case was contested only by the appellant, and the owner of the vehicle, who was added as 1st respondent before the tribunal and as respondent No. 4 in this appeal, did not contest the case. The appellant, contesting the case, denied the rashness and negligence on the part of the driver of the lorry, and contended that since the deceased was a gratuitous passenger, no liability can be fastened on it, apart from that the amount claimed is excessive.
5. On these and other allegations as contained in the respective pleadings, the tribunal framed the following issues:
1) Whether the accident that occurred on 08-05-1999 at about 8-30 pm near Sri Satya Sai School, Kollapur, Mahaboobnagar District, which resulted in the death of the deceased Kuruva Yejju Bojjanna, was on account of the rash and negligent driving of the lorry APN-5054 by its driver?
2) Whether the petitioners are entitled for the claimed amount of Rs. 1,50,000/-? If not, how much and against whom?
3) To what relief?
6. Thereafter, the parties went into trial. During the course of trial, the claimants examined P.Ws.1 and 2 and marked Exs.A-1 to A-3 whereas no oral evidence was adduced on behalf of the appellant, except consent marking of the Insurance policy as Ex.B-1.
7. On a consideration of the evidence and material on record, the Tribunal held that there was rash and negligence on the part of the driver of the lorry, and further, the claimants are entitled for compensation of Rs. 1,50,000/- (Rupees One lakh and fifty thousand only) with interest at 9% p.a. from the date of petition till the date of payment recoverable from respondents 1 and 2. Hence, this appeal.
8. The main submission made by the learned Standing Counsel, on behalf of the appellant, is to the effect that having regard to the terms and conditions of the policy and having regard to the very nature of accident, which reveals that while the deceased was getting down the vehicle and his one foot was on earth and other was on the footboard, the accident occurred, and he being a gratuitous passenger, the insurance company cannot be mulcted with liability.
9. This submission was sought to be repelled on behalf of the respondents herein stating that the deceased was not a gratuitous passenger and since the deceased virtually got down and though touched the earth, and hence, it can be termed as he continues to be a passenger in the vehicle, and therefore, be it a gratuitous or not, the question of exempting the liability of the insurance-company does not arise.
10. Having considered the submissions made on either side and on perusal of the material on record, the question, that arises for consideration, is as to whether on the facts and circumstances of the case, the deceased was a gratuitous passenger, and whether the appellant-insurance company can be made liable.
11. There is no dispute in regard to the very nature of accident that occurred and as spoken to by the witnesses-P.Ws.1 and 2, of them P.W.2 is an eye-witness, who states that while he was coming from Ramapuram village, on completion of masonry work, and on his reaching near Sri Satya Sai School, he saw the lorry involved in the accident coming from Kollapur was stopped. It is only at that point of time, the deceased was getting down from the said lorry and the driver of the said lorry drove the vehicle in a rash and negligent manner with high speed, and as a result of which, the deceased came under the rear tyres of the said lorry and died on the spot. This version of P.W.2 remained totally uncontroverted and unrebutted. Further, the appellant herein did not choose to let in any evidence, in rebuttal contradicting the version of the claimants. Therefore, it can safely taken that the deceased was while getting down and on touching earth, came under the lorry, which was suddenly moved.
12. Thus, it appears that the accident occurred only when the deceased virtually got down after the vehicle was stopped and the vehicle was all of a sudden started, as a result of which, he came under the rear wheels. Once a person gets on and steps down the vehicle, and in the process, the incident occurs, he no longer continues to be a passenger, but becomes alien and a third party, and thus, liability of insurance-company as per the very terms of contract gets extended to. In the similar circumstances, in Kanwar Shamsher Singh and Ors. v. Satbir Singh and Ors. , the Delhi High Court has held that no such contract of passenger continues to exist and such a person becomes a third party, and therefore, the liability fastens on the insurance company. The learned Judge was following the earlier two decisions of Madras High Court, in Thoznilalar Transport Company v. Valliammal and Ors. 1990 ACJ 201 and A. Subramani v. Mani and Ors. apart from another decision of its own Court, reported in New India Assurance Company Ltd. v Savitri Devi and Ors. . Similar view was reiterated by the High Court of Bombay, Panaji Bench, in Oriental Insurance Company Ltd. v. Edward D'Cruz Rodrigues and Ors. , holding that the contract of carriage is discharged as soon as the transport vehicle reaches the destination of the passenger. Alighting from the bus is an ancillary process incidental to the contract of carriage. At the terminus, nothing remains to be enforced against either the vehicle driver or owner or the passenger. The passenger cannot be called passenger as the hire charges stand exhausted on arrival at the destination. Hence, the provision of Section 95 (1) proviso (ii) will have to be construed in that light. Alighting process by the passenger is incidental to reaching the destination. Passenger has no option left but to get down.
13. That having regard to aforesaid principles, the only conclusion which can be arrived in this case is that the deceased no longer remains as a passenger, either gratuitous or otherwise, but wholly stands on the footage of a third party. Therefore, there is no substance in the plea raised by the appellant/insurance-company and there is no escape from its liability.
14. The Civil Miscellaneous Appeal merits no consideration and is accordingly dismissed. However, in the circumstances, no costs.