Andhra HC (Pre-Telangana)
The Divisional Manager, New India ... vs Abdul Sammad Chellappa And Ors. on 29 October, 1990
Equivalent citations: 1991(1)ALT284
JUDGMENT Immaneni Panduranga Rao, J.
1. This C.M.A. arises out of a claim petition filed under Section 110-A of the Motor Vehicles Act (hereinafter referred to as 'the Act'). The first respondent herein was travelling in the lorry bearing No. AIK 716 from Kunta to Bhadrachalam on the night of 28-6-1987. When the lorry was reaching Gundala village in the early hours of 29-6-1987, the lorry met with an accident. Alleging that the accident is attributable to the rash and negligent driving of the driver (the second respondent herein); that his right leg was fractured in the accident; that his leg was amputated below the knee and that the driver having admitted his guilt was convicted in C.C.No. 49 of 1987 and sentenced under Section 338 of the Indian Penal Code by the Sub Divisional Magistrate, Bhadrachalam the claimant filed the claim petition claiming compensation of Rs. 3,00,000/-
2. The appellant-Insurance Company alone contested the claim petition on the grounds that the liability of the Insurance Company would not exceed Rs. 12,000/- as per the Policy; that the claim-petitioner was travelling in the lorry as an un-authorised passenger; that travelling in a goods vehicle being prohibited under law, there is violation of the terms of the policy and as such, the Insurance Company is not liable to pay any compensation.
3. The learned Additional District Judge, Khammam (Motor Accident Claims Tribunal) on an appreciation of the oral and documentary evidence adduced before him came to the conclusion that the accident occurred because of the rash and negligent driving of the lorry by its driver and that the claimant is entitled to compensation of Rs. 50,000/- towards pain and sufferring and loss of amenities for life, Rs. 5,000/- towards medical expenses, treatment and other incidential expenses and Rs. 99,900/-towards loss of past earnings and present value of future earnings making a total of Rs. 1,54,900/-. He further held that the claimant was travelling in the goods vehicle along with the goods after paying hire charges to the owner of the lorry or its driver; that in that view of the matter, there is no violation of the terms of the Policy and that as such, the Insurance Company is liable to pay compensation. He accordingly granted a decree in favour of the claimant for Rs. 1,54,900/- with interest at 12% per annum from the date of the claim petition till the date of payment jointly and severally against the driver of the lorry, owner of the lorry and the Insurance Company.
4. Aggrieved by the said decree, the Insurance Company preferred the above appeal challenging its liability to pay the compensation awarded to the claimant.
5. The learned counsel for the appellant argued that as per the allegations in the petition, the first respondent herein was travelling in the body of the lorry but not in the cabin; that Rule 277 (2) of the Andhra Pradesh Motor Vehicles Rules (hereinafter referred to as "the Rules") prohibits that; that the claimant has not filed any document such as the lorry receipt to show that he was travelling in the lorry as the owner of the goods; that even assuming that he is the owner of the goods, he is not entitled to sit in a manner endangering his person; that he should have travelled in the cabin; that the petitioner being a mid-way passenger, there is no contract between the owner of the lorry and the passenger and that there is no evidence that the driver was authorised to carry the passenger. He relied upon the decision in M. Kandaswamy Pillai v. Chinnaswamy, 1985 A.C.J. 232 (Madras) in support of his contention that when the injured has boarded the lorry mid-way along with the goods and the lorry met with an accident due to negligence of the lorry driver, it cannot be inferred that there was an implied contract of employment between the owner of the lorry and the injured and hence the Insurance Company cannot be held liable. In that case, some decisions of Karnataka High Court and Bombay High Court were referred 1o the Division Bench of Madras High Court did not follow those cases on the ground that those decisions were based upon the specific rules framed by the respective Slates, such as Rule 161 (1) applicable to Karnataka State and Rule 118 applicable to the State of Maharashtra. Their Lordships observed that no such rule is in force in Tamilnadu. Their Lordships also upheld the finding of the Accident Claims Tribunal that the Insurance Company is not liable to the claims made even under the policy of Insurance. It is evident that the decision of the Division Bench of Madras High Court is based upon the terms of the policy of Insurance under which the Insurance Company was not liable and the absence of a rule in force in Tamilnadu with regard to the liability in respect of a passenger boarding the lorry mid-way along with the goods.
6. The learned counsel for the appellant further argued that the claimant's evidence is that he has boarded the lorry along with the utensils; that he might have been carrying a head-load of utensils; that the said utensils cannot be called 'goods'; that there is no evidence that the owner has authorised his driver to pick-up mid-way passengers and that on that ground also, the claimant is not entitled for compensation. In support of his contention he tried to rely upon Section 2 (7) of the Act which defines goods. He commented that the definition of goods excludes personal luggage of the passengers travelling in the vehicle. Basing on that definition he contended that the utensils which were bring carried by way of head-load by the claimant cannot be called goods and as such, the learned Additional District Judge has committed an error into relying upon the decision in Harishankar Tiwari v. Jagru, 1987(1) A.C.J. 1 (M.P.) (F.B.). It is a Full Bench decision of Madhya Pradesh High Court. The Full Bench held that the hirer while paying hire charges for carrying the goods in the vehicle and while he or his employee is required to travel with the goods for its safety in the vehicle, it will be deemed that the hirer was carried in the vehicle for reward while his employee was carried in the vehicle in pursuance of his employment and so the hirer and his employee both have to be covered under the insurance policy and the insurer is bound to pay the compensation for death or bodily injuries while the vehicle met with an accident.
7. But I must straightaay observe that there is absolutely no material on record to substantiate the contention of the learned counsel for the appellant that the first respondent-claimant was travelling in the lorry with a head-load of utensils. On the other hand, his evidence as P.W. 1 is that himself and one Rasool went to Motu village for selling utensils as there was a 'jatara' there; that after attending to the 'jatara', both himself and Rasool were returning in the lorry along with the utensils which remained with them after sale and that they paid Rs. 200/- to the lorry driver as hire for carrying them and also their utensils. The only person that could have contradicted the above statement of P.W. 1 is the driver of the lorry. Though he was impleaded as a respondent to the claim petition, he was not examined to contradict the evidence of P.W. 1. The mere fact that the driver and the owner of the lorry remained ex parte need not preclude the Insurance Company from summoning the lorry driver and examining him to contradict the evidence of P.W. 1. Excepting making suggestions in the cross-examination that P.W. 1 did not pay any money to the lorry driver ; that in the petition he has not pleaded about the payment of Rs. 200/- that he was not carrying any goods in the lorry and that he was only a passenger (which suggestions were emphatically denied by P.W. 1), no other material is placed on record to contradict the evidence of P.W. 1. It cannot be said that P.W. 1 has invented a new story for the first time in his evidence because the fact of P.W. 1 travelling in the lorry along with Rasool and their material, viz., utensils from Kunta to Bhadrachalam for a hire of Rs. 200/- in the lorry driven by Masthan is mentioned in the charge-sheet filed against the lorry driver in Crime No. 107 of 1987 before the Mandal Magistrate at Bhadrachalam. The driver was arrested on the very next day after the occurrence on 30-6-1987 and the investigation revealed that the injured claimant and Rasool engaged the lorry bearing No. AIK 716 for hire from Kunta to Bhadrachalam for Rs. 200/- for transporting them along with their utensils, ft cannot be said that for two head-loads of utensils P.W. 1 and his associate Rasool should have paid a sum of Rs. 200/- towards transport charges for them and the two head-loads of utensils. The evidence of P.W. 1 about the payment of Rs. 200/- to the driver of the lorry by way of hire charges is thus corroborated by the documentary evidence which has come into existence long prior to the filing of the claim petition. It is also significant to note that the lorry driver did not dispute the allegations in the charge-sheet but having pleaded guilty, he was convicted and sentenced under Section 338 of the Indian Penal Code. Under these circumstances, the absence of making a plea in the claim petition about the payment of Rs. 200/- towards hire charges loses its significance because it cannot be said by any stretch of imagination that fact was invented for the first time when P.W. 1 was in the witness box. 1, therefore, hold that the learned Additional District Judge (Motor Accidents Claims Tribunal) did not commit any error in relying upon the uncontroverted testimony of P.W. 1 which is supported by Ex. A. 2 certified copy of the charge-sheet in coming to the conclusion that P.W. 1 was travelling in the lorry along with the goods after paying hire to the driver of the lorry.
8. The Insurance Company which alone contested the claim petition before the Tribunal did not choose to file the policy to show that transporting the owner of the goods in the lorry is prohibited by the policy. Rule 277 (3) of the Rules which was introduced in the year 1983 provides that no person other than a person connected with the conveyance of goods shall travel in a goods vehicle. The above Sub-clause (3) carves out an exception for Rule 277 (5) of the Rules which specifies that no person shall be carried for hire or reward in a goods vehicle unless the vehicle is covered by a permit authorising the use of the vehicle for such purpose and in accordance with the provisions of such permit. Thus, the prohibition against a passenger being carried for hire or reward in a goods vehicle is subject to the exception of passengers connected with the conveyance of goods. It there- fore, follows that the Rules applicable to our State provide for the owner of the goods being carried in the goods vehicle for hire. As I observed already, the policy has not been filed by the Insurance Company to show that the policy provides for a different type of stipulation.
9. In the light of Rule 277 (3) of the Rules, making an exception for carrying passengers connected with the goods in the lorry, the decision of Madras High Court referred to supra in M. Kandaswamy Pillai v. Chinna swamy (case 1 supra) has no application to the facts of this case. It is no doubt held by a Division Bench of our High Court in Oriental Fire and General Insurance Co. v. M. Bhamumathi, 1990(1) ALT 685 that where passengers are carried for hire or reward in a lorry which is a goods vehicle, the insurer is not liable for death or bodily injury to such passengers. That decision is based upon the Rules prohibiting the carriage of persons for hire or reward in a lorry. But as I observed already, Rule 277 (3) makes an exception for carriage of passengers connected with the conveyance of the goods. My learned brother Syed Shah Mohammed Quadri J., held in The Oriental Fire and General Insurance Co. Ltd. v. P. Ramanamma and Ors., 1989 (2) ALT 19 (NRC) that the owner of the goods travelling with the goods in a goods vehicle is covered by the 'Act Policy' and that prescribing limit on the liability of the Insurance Company in the policy inconsistent with the liability imposed under Section 95 (2) of the Act is not only not a valid defence under Section 96 (2) of the Act but is also void. The decision in Khandu v. Laxminarayan, 1989 ACJ 1028 (M.P.) of Madhya Pradesh High Court relied upon by the learned counsel for the appellant has no application to the facts of this case because in that case, the passengers were carrying head-loads of fire-wood and they boarded the truck with Their head-loads of fire-wood. As I discussed earlier, the claimant herein and his friend Rasool did not board the lorry with mere head-loads of utensils, as, they would not have paid Rs. 200/- towards the fare to the lorry driver towards hire charges for them and two head-loads of utensils. The owner of the lorry did not examine himself to speak to the fact that he did not authorise the lorry driver to pick-up mid-way passengers. A Division Bench of Kerala High Court held in New India Assurance Co., Ltd. v. K.T. Jose, 1990 ACJ 84, that law countenances passengers travelling in goods vehicle and when the owner of the goods pays hire for the goods vehicle to carry his goods and where it becomes necessary for him to travel in the goods vehicle for the purpose of loading, unloading or taking care of the goods, the contract between him and the owner of the vehicle must necessarily imply permission for him or his agent to travel in the vehicle. The Division Bench held that this implied condition would also have been taken into consideration in fixing the hire. Consequently, the Division Bench held that the owner of the goods travelling in a goods vehicle is covered by the exception to the second proviso to Section 95 (1) (b) of the Act and hence the Insurance Company is liable to pay compensation. To the same effect is the latest decision of Himanchal Pradesh High Court in New India Assurance Co. Ltd. v. Usha Rani, 1990 ACJ 785 (H.P.) holding that in case of death of the owner of goods travelling in a goods vehicle along with the goods when the vehicle fell down, the Insurance Company is liable.
10. Following the decision of my learned brother Syed Shah Mohammed Quadri, J in The Oriental Fire and General Insurance Co. Ltd. v. P. Ramunamma and Ors. case (4 supra) and the decisions of Kerala and Himachal Pradesh High courts referred to above, I hold that P.W. 1 (the claimant) who was travelling in the lorry along with his goods as their owner is covered by the 'Act Policy' and as such, the Insurance Company is liable to pay compensation awarded by the Tribunal.
11. The C.M.A. is accordingly dismissed. No costs.