IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH FRIDAY, THE SIXTH OF JUNE TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO MACMA.No.258 of 2011 Between :
The New India Assurance Co. Ltd., Rep. by its Deputy Manager, S. Muralikrishna, S/o. S.V.R.S. Somayajulu, Aged : 47 years, Motor Third Party Claims Cell, 5-2-174/2, Madan Mohan Building, IInd Floor, R.P. Road, Secunderabad.
…Appellant/Respondent No.2 Vs.
Gandam Savithramma, W/o.Late Bala Eswar Reddy, Aged : 43 years, Occ : Coolie, R/o.Palakuru (V), Banaganapalli (M), Kurnool District and two others.
…Respondents/Claimants Counsel for the Appellant : Sri Sriman Counsel for respondent : Sri K. Srinivas The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO MACMA.No.258 of 2011 JUDGMENT :
This appeal is filed challenging the judgment and decree dt.30.11.2007 in MVOP.No.152 of 2006 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Court, Kurnool at Nandyal.
2. The appellant is the Insurance Company. One G. Sreedhar Reddy died in an accident on 05.03.2006 while travelling in a tractor bearing No.AP21-K-2878/2879. The said vehicle was owned by 3rd respondent who was the employer of the said G. Sreedhar Reddy. The deceased was employed as a coolie to work at a quarry by 3rd respondent.
3. The mother and brother of deceased, claiming to be the legal heirs, filed MVOP.No.152 of 2006 before the Tribunal seeking compensation of Rs.3,00,000/- from 3rd respondent and appellant herein.
4. In the counter-affidavit filed by appellant there is a specific plea raised that the tractor is a commercial goods carriage transport vehicle and the deceased was not supposed to travel as a gratuitous passenger and such risk, injury or death to a gratuitous passenger would not be covered under the policy.
5. In the impugned judgment the Tribunal rejected the said contention and held that the deceased was working in a quarry and when the tractor was returning he requested the driver to give a lift up to the village and therefore, the deceased has to be held to have been engaged as a coolie by 3rd respondent; that when trying to board the tractor trailer, due to rash and negligent driving of the driver of the said vehicle, he fell down and sustained injuries and died; that insurance policy was in subsistence as on the date of accident; and therefore, the 3rd respondent and appellant are both liable to pay compensation to claimants.
6. Challenging the same the present appeal is filed.
7. Heard Sri Sriman, counsel for the appellant. None appears for respondent even though the name of the counsel Sri K. Srinivas is printed in the cause list.
8. The sole contention of the counsel for appellant is that the deceased was an unauthorised passenger travelling in a tractor and no insurance premium was paid in respect of labourers/coolies by 3rd respondent to appellant, and therefore, the risk of death or injury to persons like the present deceased was not covered under the policy and therefore, the appellant cannot be made liable. He placed reliance on Ramashray Singh v. New India Assurance Co. Ltd. and others
[1]
; National Insurance Company Limited v. Kaushalaya Devi and
[2]
others ; and New India Assurance Company Limited
[3]
v. Lodya Shankar and another .
9. Rule 252 of the Andhra Pradesh Motor Vehicle Rules, 1989 permits only seven persons to be carried in a goods vehicle including the driver and the cleaner, either as coolies or persons connected with goods that are being transported in the vehicle. It also states that no person shall be carried in the cabin of a goods vehicle beyond the number for which there is seating accommodation at the rate of 284 millimeters measured along the seat, excluding the space reserved for the driver for each person.
10. Chapter – XI of the 1988 Act makes insurance against third party risk mandatory for use of any motor vehicle in a public place but as per proviso to Sub-Section (1) of Section 147 of the said Act, the owner of a motor vehicle is not required to take out a policy to cover the risk of (i) his employees being carried in a goods vehicle; (ii) his driver driving the vehicle; and (iii) his conductor or examiner of tickets, if the vehicle is a ‘Public Service Vehicle’. So, even if an owner of a motor vehicle does not take out insurance policy to cover risk to the above three categories of employees, he would not be liable for prosecution under Section 196 of the 1988 Act. It, thus, follows that insurance to those employees is not made compulsory. However, in spite of the same, it is open to the owner of a goods vehicle to pay extra premium to insurance company in respect of his labour and ensure that risk of injury or death is also covered. Insurance is a contract of indemnity and the insurer is liable only to the extent of liability it undertakes.
11. In Ramashray Singh (1 supra), the Supreme Court held that under Section 147 of the Act only certain categories of employees are covered but the owner of the motor vehicle can enter into an agreement to cover other employees also by paying extra premium. After referring to Section 147 of the said Act, the Supreme Court held that over and above the risks which are covered by this provision, parties may of course enter into a contract by which the insurer agrees to cover additional risks.
12. In Kaushalaya Devi (2 supra), a person who was travelling in a truck for the purpose of collecting empty boxes died in an accident involving the said vehicle. The Supreme Court held that the deceased was not owner of any goods which were being carried in the truck; that he was a vegetable dealer; that he was not travelling in the truck as owner of the vegetables and he was travelling in the truck for a purpose other than the one for which he was entitled to travel in a public carriage goods vehicle. It therefore held that the Insurance Company is not liable since there was no statutory provision compelling the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle; and that there was no such coverage in the facts of the said case.
13. In Lodya Shankar (3 supra), a claim was made under the provisions of the Workmen’s Compensation Act, 1923 by a workman who was engaged as a labourer in a lorry, and who suffered injuries in an accident involving the said vehicle. This Court referred to Rule 252 of the Andhra Pradesh Motor Vehicle Rules, 1989 and held that the owner of the vehicle had insured the vehicle only to cover the risk of his driver and cleaner and it cannot made liable for payment of compensation to coolies being transported in the lorry who are not covered by the policy issued by it.
14. From the above decisions, it is clear that in a goods carriage up to seven persons are allowed to travel as per the Andhra Pradesh Motor Vehicle Rules, 1989. Subject to the conditions stipulated in Rule 252, if the vehicle in question is a vehicle like tractor/trailer where normally only the driver would be covered under the policy, unless separate premium is paid by the owner of the vehicle to the insurance company to cover the risks to other passengers also, the insurance company cannot be made liable. The Tribunal has not considered the matter in this perspective and made the appellant/insurer liable only on the ground that there was a valid subsisting insurance policy without verifying whether the risk of death to coolies of 3rd respondent was covered under the policy in question.
15. Since there was admittedly no coverage under the terms of the policy to the labourers employed by 3rd respondent and since the seating capacity of the vehicle is only one (driver), the vehicle could not have been used for travel of anybody else. So the insurer cannot be made liable in respect of persons travelling as gratuitous passengers in the vehicle and who died when the vehicle was being driven rashly and negligently by the driver of the vehicle. Therefore, the decision of the Tribunal is unsustainable and consequently the appeal is allowed and the judgment of the Tribunal is set aside.
16. It is, however, open to the respondent Nos.1 and 2 to proceed against 3rd respondent in their personal capacity and recover compensation for the death of the deceased.
17. Miscellaneous applications, pending if any, in this appeal, shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 06-06-2014 Ndr/*
[1] (2003) 10 SCC 664
[2] (2008) 8 SCC 246
[3] 2004 (3) ALD 400