Muniyandi v. B. Srinivasulu
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO C.M.A. No. 2487 of 2004 JUDGMENT:
This Civil Miscellaneous Appeal is preferred by the claimants aggrieved by the Award in O.P.No.610 of 1993 dated 27.01.1999 passed by the Chairman MACT-cum-Principal District Judge, Nalgonda (for short "the Tribunal").
2) The parties in this appeal are referred as they were arrayed before the lower Tribunal.
3) The factual matrix of the case is thus:
a) The claimants are the parents of the deceased-Govindan @ Raja, who died in a motor vehicle accident that occurred on 28.12.1991 when the deceased along with his friend-Muthu Krishnan was proceeding from Nagarjuna Sagar in a lorry bearing No.APD 8399 as owner of goods for his business purpose and at about 11:30pm, when the said lorry reached near Kankara machine of Hill Colony at Nagarjuna Sagar, the driver of the lorry drove it in a rash and negligent manner and at high speed and met with an accident. In the resultant accident, the deceased and two other travellers also died. The claimants filed O.P. against respondents 1 & 2, who are the owner and insurer of the offending lorry and claimed Rs.1,00,000/- as compensation.
b) R.1/owner remained exparte.
c) R2-Insurance Company filed counter denying all the material averments made in the petition and urged to put the claimants in strict proof of the same. It contended that the deceased was travelling in the goods vehicle in violation of policy conditions and that the policy does not cover the risk of the passengers in the goods vehicle. It further contended that the driver was having valid and subsisting driving licence and that the vehicle was roadworthy to ply. Finally, it contended that the compensation claimed is excessive and thus prayed to dismiss the O.P. d) During trial, PWs.1 and 2 were examined and Exs.A1 to A4 were marked on behalf of claimants. Policy copy filed by Insurance Company was marked as Ex.B.1.
e) The Tribunal on appreciation of both oral and documentary evidence held that the driver of the lorry was responsible for the accident. Though it observed that the claimants are entitled to Rs.1,32,600/- but restricted the compensation to the extent of Rs.1,00,000/- claimed in the OP and granted costs and interest @ 12% p.a against first respondent alone by exonerating the R.2/Insurance Company.
Hence, the appeal by claimants.
4) Heard arguments of Sri P.Harinath Gupta, learned counsel for appellants/claimants and Sri D.Goverdhana Chary, learned counsel for respondent No.2/Insurance Company. Case against R.1 was dismissed for default vide Court Order dated 08.02.2016.
5) Impugning the Award, learned counsel for appellants/claimants vehemently argued that the Tribunal grossly erred in exonerating the Insurance company on the observation that the deceased travelled in the illfated lorry only in the capacity of a coolie as revealed in Ex.A.1-inquest report but not as owner of the goods as spoken by PW.2-a fellow passenger of the deceased. He argued that the Tribunal having accepted that PW.2 also travelled in the lorry along with the deceased and sustained injuries in the accident and also having believed his version regarding the manner of occurrence of the accident to decide the guilt of the driver but curiously did not believe him saying that himself and the deceased were carrying two bags each of eatables by paying hire charges of Rs.50/-.
He submitted that the Tribunal committed grave blunder in giving preference to the contents in Ex.A.1-inquest report than the evidence of PW.2. He thus prayed to allow the appeal and fasten liability on Insurance Company on the submission that the policy was in force and premium was collected by the Insurance Company under the head NFPP. 6) Per contra, learned counsel for R.2/Insurance Company argued that the deceased and PW.2 were only unauthorized passengers with reference to the lorry and they were not the owners of the goods and the said fact was clearly mentioned in Ex.A1-inquest report and considering the same, the Tribunal rightly exonerated the Insurance Company and therefore, there are no merits in the appeal and hence the same may be dismissed.
7) In the light of above rival arguments, the point for determination in this appeal is:
"Whether the Tribunal was right in exonerating the Insurance Company?"
8) POINT: The accident, involvement of lorry bearing No.APD 8399 and death of deceased are not in dispute. As already stated supra, the Tribunal basing on its finding that the deceased travelled in the capacity of a coolie but not as owner of the goods fastened liability only on R.1/owner while absolving R.2/Insurance Company.
9) The accident was occurred on 28.12.1991. Sec.147 of M.V.Act speaks of the requirements of the policies and limits of liability. Sec.147(1)(b)(i) of the MV Act reads thus:
"(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
Thus it is clear that policy issued would cover the liability in respect of death or bodily injury to any person including the owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, if the policy is in force by the date of accident. In the instant case, admittedly the policy was in force by the date of accident and there is no demur in that regard. It should be noted that the words "injury to any
person including owner of the goods or his authorized representative carried in the vehicle" were not there in Motor Vehicles Act, 1988 but were introduced by Amendment Act, 54/1994 w.e.f.14.11.1994. So prior to 14.11.1994, it was not incumbent upon the insurer and insured to take policy covering the risk of owner of the goods or his authorized representative. It was only from 14.11.1994 that the statute made it mandate to take policy covering the risk of owner of the goods or his authorized representative carried in the vehicle. It should be noted that prior to 14.11.1994 the risk of owner of the goods or his authorized representative used to be covered if extra premium was paid by the insurer. As already stated supra, the accident in this case was occurred on 28.12.1991 i.e., prior to the Amendment Act, 54/1994 came into force.
Therefore, the risk of owner of the goods or his authorized representative would be covered only if a premium was paid for that purpose. The Award of the Tribunal reads that the insured paid Rs.50/- for covering the legal liability of Non-Fare Paying Passengers (NFPP) as per IMT-14. This would indicate that the insured has paid premium to extend coverage to the owner or his authorized representative travelled in the vehicle. Now the question is whether the deceased and PW.2 travelled only as coolies or in the capacity of owners of their respective goods. The evidence of PW.2, who was a passenger along with the deceased, would show that he too travelled in the vehicle and suffered injuries.
With regard to the capacity in which himself and deceased travelled, his narration was that they both carried two bags each containing eatables by paying hire charges of Rs.50/-.
to him, himself and the deceased used to supply biscuits and eatables in nearby villages. As rightly pointed out by the learned counsel for appellants, though the Tribunal relied upon the evidence of PW.2 to determine the fault of the driver but discarded his evidence on other aspects i.e, the capacity in which himself and deceased travelled in the vehicle obviously for the reason that in Ex.A.1-inquest report it was mentioned as if the deceased was a coolie and travelled by carrying mortar bags. The Tribunal observed that if really the deceased was carrying eatables in bags on his business purpose, that fact should have been mentioned in Ex.A.1. I am unable to countenance the finding of the lower Tribunal. PW.2 was admittedly the co-passenger and his evidence could not be shattered.
Merely because in the inquest report something else is mentioned basing on the opinion of the inquest panchayatdars, that may not be weighed against the eye witness account of PW.2. Therefore, when the evidence of PW.2 is accepted, it can be held that the deceased and PW.2 travelled as owners of their respective goods. Further, it is not the observation of the Tribunal that the lorry was already loaded with some other goods so as to exclude PW.2 and deceased from the status of owners of the goods. So having regard to the facts and circumstances, it is held that policy squarely covers the risk of the deceased.
10) In the result, this appeal is allowed by setting aside the Award of the Tribunal to the extent of its exonerating the R.2/Insurance Company from the liability and it is directed that R.1 and R.2 are jointly and severally liable to pay the compensation awarded by the Tribunal and they shall
deposit the compensation amount within two(2) months from the date of this judgment, failing which execution can be taken out against them. No order as to costs in the appeal.
As a sequel, miscellaneous petitions pending if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J Date: 11.11.2016 Note: Issue CC by Monday (b/o) scs