United India Insurance Co.Ltd., v. Mopidi Rajanna,

HONOURABLE SRI JUSTICE A. SHANKAR NARAYANA M.A. C.M.A. No.1906 OF 2005 JUDGMENT:

The instant appeal is preferred by the United India Insurance Company Limited, Ananthapur, aggrieved by the order and decree, dated 12.07.2004 in O.P. No.272 of 1999 passed by the learned Chairman, Motor Accidents Claims Tribunal - cum - District Judge, Anantapur.

2. Respondent Nos.1 to 4 herein, who are parents and sisters of Nagaraju (who died in the accident), are petitioners in the O.P. before the Tribunal, while respondent No.5 and the appellant are owner and insurer of the tractor-trailer bearing No.AAA - 5581 & 5582 that involved in the accident.

3. For the sake of convenience, the parties are referred to as arrayed in the O.P. before the Tribunal and Nagaraju, who died in the accident as 'deceased'.

4. The facts would show that on 04.01.1998 at about 1.00 p.m., while one Nagaraju was travelling on the tractor-trailer bearing No.AAA - 5581 & 5582, by sitting by the side of the driver and since the driver, drove it in a rash and negligent manner, he lost control over the vehicle; the said Nagaraju fell down from the tractor and

came under the wheels of the tractor and while he was being shifted to Government Head Quarters Hospital, Anantapur, he succumbed to the injuries.

The petitioners stating that the deceased died in unmarried status and they were dependants on him and he was working on tractor as a coolie, earning Rs.3,000/- per month, sought to grant a compensation of Rs.1,50,000/-.

5. Respondent No.1, owner of the tractor-trailer, remained ex parte before the Tribunal.

6. Respondent No.2 contested the claim taking a specific plea of violation of terms and conditions of the policy.

7. The Tribunal, based on the pleadings, framed the following three (3) issues in order to determine compensation as well as negligence in taking place of the accident:

"1. Whether the accident occurred on 04-01-1998 due to the rash and due to the rash and negligent driving of tractor - trailor (Sic. trailer) bearing No.AAA 5581 & 5582 by its driver and caused the death of the deceased?

2. Whether the petitioners are entitled

for compensation and if so, to what amount and from which respondent?

3. To what relief?"

8. During enquiry, PWs.1 and 2 were examined and Exs.A-1 to A-5 were marked on behalf of the petitioners, and, on behalf of the insurer, Branch Officer concerned was examined as RW.1 and marked Exs.B-1 to B-3, insurance policy, permit copy issued by the Road Transport Authority (RTA) and true copy of the driving licence of driver of the tractor-trailer, respectively.

9. The Tribunal having recorded a finding on issue No.1 in favour of the petitioner, determined the compensation at Rs.1,78,400/-, but granted Rs.1,50,000/- as the same was claimed by the petitioners with interest at 9% per annum holding that both the respondents are jointly and severally liable to pay the compensation mainly basing on the decisions relied on by the petitioners in New India Assurance Company Limited v. Kamla and others (2001 ACJ 843) and also United India Insurance Company Limited v. Lehru and others (2003 ACJ 611).

10. Heard Smt. A. Malathi, learned counsel for the insurer (appellant), and Sri I. Venkata Prasad, learned

counsel for the petitioners (respondents).

1 1 . Non-service of notice on the owner of the tractor-trailer (respondent No.1) is inconsequential. It is a fact that notice was addressed to the address mentioned in the cause title of the claim petition and the same is sufficient enough to hold that there has been no defect in sending the notice to respondent no.1, owner of the vehicle.

12. Learned counsel for the insurer would submit that the deceased was not only not a coolie on the tractortrailer, but, in fact, he was engaged by one Golla Adinarayana, and not by the owner - insured, but also he (deceased) was sitting by the side of the driver of the tractor at the relevant time, as per the documents filed by the petitioners. It is, therefore, his submission that the Tribunal went wrong in fixing liability on the insurer as the tractor-trailer was meant for agricultural purpose.

13. Perused the order and decree under challenge and the material on record.

14. The evidence let in by the petitioners through Ex.B-1, insurance policy, would show that the tractortrailer was insured for agricultural purpose which expression was mentioned under the vertical column intended for permitted use. This apart, the evidence

would show that the petitioner was sitting by the side of the driver of the tractor-trailer at the relevant time, which, thus, proves that he was travelling as an unauthorised passenger.

15. Somehow, the decision rendered by the Hon'ble Apex Court in New India Assurance Company Limited v. Asha Rani[1] was not placed before the Tribunal. Since, not only there is violation of use for the purpose for which it was insured, but also in view of the fact that the deceased was sitting by the side of the driver of the tractor-trailer at the relevant time and further, though, he was not a hired labourer on the tractor-trailer, the finding of the Tribunal holding that the insurer is liable to pay compensation cannot be sustained, and, therefore, the said finding is set aside exonerating the insurance company from its liability and confirming the order under challenge in all other respects.

16. As can be seen from the proceeding sheet, this Court while granting interim stay, directed the insurer (appellant) to deposit half of the amount awarded by the Tribunal vide MA CMA MP No.411 of 2005 on 10.02.2005 and even the claimants were permitted to withdraw the same by the order, dated 20.08.2005, without furnishing any security. So far as the balance amount is concerned, the petitioners are at liberty recover the same from the

insured. The insurer is at liberty to recover the amount deposited by it and withdrawn by the petitioners from the insured.

17. Accordingly, the Civil Miscellaneous Appeal is allowed as indicated above.

As a sequel thereto, Miscellaneous Applications, if any, pending in the appeal stand disposed of. ___________________________ A. SHANKAR NARAYANA, J June 23, 2016.

PV

1. (2003) 2 SCC 223