K.T.Sattemmaand 3 ORS v. P.Narasimha And ANR

HON'BLE SRI JUSTICE CHALLA KODANDA RAM C.M.A.No.655 OF 2004 JUDGMENT:

The claimants in O.P. No. 1124 of 2000 on the file of Additional Special Judge for SPE & ACB Cases-Cum-V Additional Chief Judge, City Civil Court, Hyderabad (in short "the Tribunal"), seeks enhancement of compensation from the respondents, on account of the death of Ramulu, who is husband of appellant No.1, father of appellant Nos.2 and 3 and son of appellant No.4.

As per the claim filed by the appellants, on 21.05.2000, at 7.30 p.m. the deceased late Ramulu, who was a labourer working on the lorry bearing No. AAP 4992, owned by the respondent No.1, met with an accident at Alair, and died on account of rash and negligent driving of the driver of the said lorry. Learned Judge on consideration of the evidence placed before it, found that the deceased Ramulu was employed and working under 1st respondent as labourer on the lorry bearing No.AAP 4992 and he was earning a sum of Rs.1800/- p.m. at the relevant time, and the lorry was driven in a rash and negligent manner and thus the claimants were entitled to be paid compensation of Rs.2,78,300/- in all under different heads. However, the learned Judge held that the insurance company is not liable to pay the compensation as there was a breach of condition of usage of vehicle and that the accident had occurred when the deceased Ramulu was not engaged as a labourer on the lorry but was travelling as a gratuitous passenger. As the

vehicle was not insured by paying additional premium for allowing the passengers to travel and the vehicle was used for the purposes other than the one covered under the policy, the owner-1st respondent alone is liable to pay the compensation, assailing the Award as erroneous in exonerating the insurance company and further not allowing the total amount claimed as compensation, the present Appeal is filed by the claimants. Learned counsel for the appellants strenuously contends that, in giving a finding that the insurance company is not liable, the Court below gravely erred in appreciating the evidence of PW 2 and RW 1, who categorically deposed that on the fateful day, the deceased was employed on the lorry as a labourer and the accident had occurred while the vehicle was coming back empty on account of labourer's strike at the ramp.

The learned counsel would submit that the learned Judge discarded the oral evidence of P.W.2 and R.W.1 by merely placing reliance on the FIR and the Charge Sheet and gave a finding that the lorry, the at relevant point of time, was not flying for carrying goods but on a pilgrimage trip.

On the other hand, learned Standing Counsel for the insurance company, making reference to the Charge Sheet and FIR asserts that, at the first instance, the owner stated that the lorry was returning from Yadagiri Gutta after having darshan of the deity. Therefore, the Court below had rightly concluded that the evidence of R.W.1 and P.W.2 is not reliable and trustworthy and they had deposed falsely only to help the claimants. R.W.1 evidence is to be discarded as he is the one, who would be liable

for paying compensation as the owner of the vehicle, on account of the late Ramulu's death caused due to rash and negligent driving of the driver.

Learned Standing Counsel relied on the judgment of the supreme court in National Insurance Company Limited v Bommithi Subbhayamma and others1 to support his claim that in the absence of payment of extra premium to cover the passengers, the insurance company cannot be made liable. Having considered the respective submissions and on perusal of the material evidence on record, this court is unable to accept the argument on behalf of the appellants. FIR, Charge Sheet and the recitals therein, would have great relevance for the present case on hand. There is no dispute that the FIR, which was signed at the instance of respondent No.1-owner and the charge sheet, which was filed after investigation by the police, speak that on the fateful day, the lorry was taken out to go to Yadagiri Gutta on a pilgrimage.

In other words, late Ramulu cannot be construed as a labourer working on the vehicle, which was insured. There is also no dispute that the insurance is covered to the vehicle as a goods-carrying vehicle and that the policy liability of the insurance company is limited to six labourers working in the process of transporting the goods. As held by this Court, in Mackinnon Mackenzie and Company Private Limited Vs.

time of accident for which it is meant to be used and is being used for other purposes, no liability can be fastened on the insurance company. There is no exception on this aspect and there is no authority placed before this Court to contradict such proposition. It is not brought to the notice of this Court that any appeal having been filed by the 1st respondent challenging the award. In those circumstances, considering the fact that the challenge in the present appeal being limited to the extent of exoneration of the insurance company, non-service of notice on the 1st respondent is of no consequence.

For the reasons stated above the present appeal is dismissed. There shall be no order as to costs. Consequently, Miscellaneous Petitions, pending if any, in this Appeal shall also stand dismissed.

____________________________ CHALLA KODANDA RAM, J Dated:19.12.2017.

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