IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH WEDNESDAY, THE ELEVENTH OF JUNE TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO MACMA.No.298 of 2011 Between :
Bajaj Allianz General Insurance Co. Ltd., Rep. by its Branch Manager, Dwaraka Towers, 7 roads, Kadapa.
…Appellant/Respondent No.2 Vs.
Konete Narasimhulu, S/o.Penchalaiahy, Aged about : 53 years, Coolie, R/o. Mangalampalli Village, Kodur, Kadapa District and others.
…Respondents/Petitioners Counsel for the Appellant : Sri T. Mahender Rao Counsel for Respondents : Sri K. Venugopal Reddy The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO MACMA.No.298 of 2011 JUDGMENT :
This appeal is filed challenging the judgment and decree dt.27.10.2010 in MVOP.No.162 of 2008 on the file of the Motor Accident Claims Tribunal-cum-III Additional District Judge (Fast Track Court), Kadapa at Rajampet.
2. On 24.03.2007, one K. Vasu, a mason, was travelling in goods auto rickshaw bearing No.AP 04 V 6470, belonging to 5th respondent and insured by appellant. An accident occurred on account of the driver of the said auto driving it in a rash and negligent manner and causing it to turn turtle thereby causing the death of K. Vasu.
3. His parents, sisters and brother filed MVOP.No.162 of 2008 under Section 166 of the Motor Vehicles Act, 1989 (for short, ‘the Act’) seeking compensation of Rs.4,00,000/- as damages for the death of the deceased.
4. The 5th respondent remained ex parte.
5. The appellant contended that the auto rickshaw in question was a goods carrying motor vehicle with a seating capacity of only one person i.e., its driver; that the deceased was an unauthorised passenger in the said vehicle; since the 5th respondent’s driver violated the terms and conditions of policy and the provisions of the Act, the appellant is not liable to pay any compensation.
6. By judgment and decree dt.27.10.2010, the Tribunal rejected the said contention and awarded Rs.4,00,000/- directing it to be paid by appellant as well as 5th respondent to respondent Nos.1 to 4/claimants. It held that the 2nd respondent as RW.1 admitted that the deceased was taking bhajana samans (articles) along with him in the vehicle at the time of the accident and, therefore the deceased has to be taken as ‘travelling as owner of the goods in a goods vehicle’; and therefore, the case falls under Section 147 (1) (b) (i) of the Act. It placed reliance on the decision of the Supreme Court in National Insurance Co. Ltd. v. Cholleti Bharatamma and
[1]
others .
7. Challenging the same, this appeal is filed.
8. Heard Sri T. Mahender Rao, counsel for the appellant; and Sri K. Venugopal Reddy, counsel for respondents.
9. The counsel for appellant contended that the judgment of the Tribunal is unsustainable and that it erred in holding that the appellant is liable to compensate respondent Nos.1 to 4 for the death of the deceased; that under the policy in question, only one individual was insured, i.e., the driver, and in the absence of any other person being permitted to travel in the vehicle as per the permit and any insurance coverage for the said persons, the appellant has no liability whatsoever to compensate for the death of such persons.
10. On the other hand, the counsel for respondents/claimants contended that the finding of the Tribunal is correct and did not warrant any interference in the appeal.
11. In Cholleti Bharatamma (1 supra) cited by the Court below, the Supreme Court considered the provisions of Section 147 of the Act as amended in 1994. In relation to liability of the Insurance Company to indemnify the owner of the vehicle in respect of death of passengers travelling in a goods carriage, it held that the Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods. It held that the provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle and the insurer would not be liable therefor.
12. The Court followed the decision in New India
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Assurance Co. Ltd. v. Asha Rani and held that Section 2 (35) of 1988 Act did not include passengers in goods carriage while Section 2 (25) of 1939 Act did; that even passengers were allowed to be carried in a goods vehicle under the 1939 Act; there is a significant change brought about by Parliament in the 1988 Act, and therefore, the words “death of or bodily injury to any person” would apply only to a third party. It held that the said words would not mean a passenger travelling in a goods carriage, whether gratuitous or otherwise. It held that insurance company is not liable to pay compensation for death of gratuitous passenger travelling in a goods vehicle.
13. Even though under the 1994 Amendment, statutory liability of the insurer/owner of the vehicle is expanded to include the owner of the goods or his authorised representative carried in the vehicle, unless premium is paid and the vehicle in question is such that it could accommodate persons other than the driver in addition to the goods, the insurer cannot be made liable.
[3]
In United India Insurance Co. Ltd. v. Suresh K.K.
Supreme Court held:
“10. It is now well settled that the term “any person” envisaged under the said provision shall not include any gratuitous passenger. (National Insurance Co. Ltd. v. Baljit Kaur) If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter, in a three-wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed
, the to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved. The Tribunal and the High Court, therefore, in our considered opinion, should have held that the owner of the vehicle is guilty of the breach of the conditions of policy.” (emphasis supplied)
14. In the present case, admittedly the policy covers the risk of injury or death to only one person, i.e., the driver of the auto rickshaw since the vehicle is so small that there is no place for anybody else to travel in it other than the driver in the cabin. No separate premium has been paid to cover risk of injury or death to other passengers in the vehicle, gratuitous or otherwise.
15. Following the same, and in the facts and circumstances of this case, I hold that the appellant/Insurance Company cannot be held liable since there was no coverage under the policy Ex.B.1 of risk of injury to persons like the deceased since the vehicle in question did not permit more than one person (driver) to travel in it and also because no extra premium has been paid to cover the said risk.
16. Therefore, the judgment of the Tribunal is set aside and the appeal is allowed. No costs.
17. Miscellaneous applications, pending if any, in this appeal, shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 11-06-2014 Ndr/*
[1] 2008 ACJ 268
[2] 2003 ACJ 1 (SC)
[3] (2008) 12 SCC 657