THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
M.A.C.M.A. No.948 OF 2007
Date: 18.06.2014
Between:
The New India Assurance Company Limited, Rep. by its Divisional Manager, Third Party Claims Cell, Al Karim Trade Centre, Ranigunj, Hyderabad.
… Appellant And Chakali Ashamma and others. … Respondents THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
M.A.C.M.A. No.948 OF 2007
JUDGMENT:
Challenging the said judgment and award dated 24.01.2007 passed in O.P.No.904 of 2006 on the file of the Motor Vehicles Accidents Claims Tribunal-cum-Principal District Judge, Medak at Sangareddy (for short, ‘the Tribunal’), the Insurance Company preferred the present appeal.
Heard the learned counsel for the appellant and perused the material available on record.
For the sake of convenience, the parties hereinafter be referred to as arrayed before the Tribunal.
The facts in issue are as under:
The claimants filed an application under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.4,00,000/- (Rupees Four lakhs only) for the death of one Chakali Bakkappa in a motor accident that occurred on 23.01.2005 at 12.30 p.m. in the limits of Nagavaram Tanda, Bantawaram P.S., Rangareddy District. It is stated that on the fateful day the deceased was traveling as a labourer for loading and unloading the tractor bearing No.AP-28-P-4755 and when the said tractor reached the limits of Nagavaram Tanda the driver of the said vehicle drove the said vehicle in a rash and negligent manner, due to which the deceased fell down from the tractor. Thereafter, the tractor ran over the deceased leading to instantaneous death. In respect of the above incident, a case in Crime No.9 of 2005 of Bantawaram P.S. came to be registered for an offence punishable under Section 304-A of I.P.C. The deceased was aged about 25 years at the time of the accident and was said to be earning Rs.5,000/- per month by doing agricultural labourer. The claimants, who are his wife and children, are dependent on him and as such they preferred the O.P. claiming compensation against the respondents 1 & 2, who are the owner and insurer of the said vehicle respectively.
The 1st respondent filed his counter denying the averments in the petition and putting the claimants to strict proof of the same. It is stated that the driver of the tractor drove the tractor very slowly, but the deceased who was sleeping in the tractor fell down, which lead to the above incident.
The 2nd respondent filed a counter disputing the age, income, avocation and also the manner in which the accident took place. It was specifically contended that the driver of the tractor was not having a valid licence to drive the tractor at the time of the accident. It is further contended that the Insurance company is not liable to pay compensation as the tractor was insured for agricultural purposes and no additional premium is paid covering the risk of labourers travelling in the tractor. Since there is violation of the conditions of policy, it is stated that the Insurance company is not liable to pay compensation.
Basing on the above pleadings, the Tribunal below framed the following issues:
(1) Whether the accident occurred due to rash and negligent driving of the driver of the crime vehicle?
(2) Whether the petitioners are entitled for compensation, if so; at what quantum and from whom?
(3) To what relief?
In support of the claim, the claimants got examined P.Ws.1 & 2 and marked Exs.A1 to A7. On behalf of the respondents, R.W.1 was examined and Ex.B1 was marked. After considering the oral and documentary evidence available on record, the Tribunal below held that the accident took place due to rash and negligent driving of the tractor and that the Insurance company is liable to pay compensation of Rs.4,00,000/- (Rupees Four lakhs only) with interest at 7.5% p.a. from the date of petition till the date of realization. Challenging the same, the Insurance Company filed the present appeal.
Though the present appeal is filed challenging the judgment and award dated 24.01.2007 passed in O.P.No.904 of 2006 on the file of the Motor Vehicles Accidents Claims Tribunal-cum-Principal District Judge, Medak at Sangareddy, the learned counsel for the appellant restricted his argument to the liability of the Insurance company to pay compensation of Rs.4,00,000/-. According to him, the tractor was insured for agricultural purposes and no additional premium was paid covering the risk of labourers traveling in the tractor. Since there was violation of conditions of policy, the counsel for the appellant strenuously contend that the Insurance Company is not liable to pay any compensation.
Per contra, the learned counsel for the claimants submits that the deceased died after he was run over by the tractor and as such the deceased has to be treated as third party. In such a event, he submits that the Insurance Company cannot escape from their liability. While relying upon the judgments referred to in the impugned order, he submits that the Insurance company is liable to pay compensation as the tractor has to be treated as a 'goods vehicle'.
A perusal of the evidence on record namely the evidence of R.W.1 would show that the crime vehicle was validly insured from 10.4.2004 to 9.4.2005 and that the policy issued was Special Type ‘B’ Package covering the risk of third party and one driver, including own damages of the vehicle. The evidence of R.W.1 discloses that the policy issued to the tractor was for agricultural purposes and its owner did not pay any premium covering the risk of labourers. His evidence further disclosed that the policy is issued only for the tractor and no extra premium is paid for trailer or any other agricultural equipment. According to him, the deceased was unauthorized passenger sitting on mudguard of tractor and as such the Insurance company is not liable to pay any compensation.
Per contra, the evidence of P.W.2, who was examined as a eye- witness, clearly discloses that on a fateful day the deceased was sitting on the mudguard of the tractor and due to rash and negligent driving of the tractor he fell down from the tractor. Thereafter the tractor ran over the deceased as a result of which he died on the spot. Immediately thereafter P.W.2 informed the Sub-Inspector of Police about the incident. The evidence of P.W.2 further discloses that there were stones at the curve and due to rash and negligent driving by the driver of the tractor, the vehicle ran over the said stones, due to which there was a jump and the deceased fell down from the tractor. Thereafter the tractor ran over the deceased. P.W.2 was cross-examined at length but nothing useful elicited to discredit his testimony. On the other hand, the evidence of P.W.2 corroborates Ex.A1 First Information Report, Ex.A2 Charge sheet, Ex.A4 Inquest and Ex.A6 M.V.I. report. Therefore, the version of R.W.1 that the deceased died while traveling on the tractor appears to be incorrect. On the other hand, the deceased died when the tractor ran over the deceased after he fell down from the tractor.
The question is whether in such circumstances the Insurance company can exonerate itself from the liability.
The evidence on record clearly establishes that the deceased fell down from the tractor and thereafter the tractor ran over him, which resulted in death of the deceased. The moment he fell down from the tractor, he lost the character of the unauthorized passenger of goods carrier and becomes a third party. Once he is a third party to the vehicle, there is a statutory liability of the insurer against the third party under Section 147 read with Section 149 read with Section 168 of the Motor Vehicles Act, to indemnify. As stated above, it is a Special Type ‘B’ Package policy covering the risk of third party and one driver. Therefore, the contention of learned counsel for the appellant that the policy does not cover the risk of a labourer cannot be accepted. The said view of mine deserves support from the judgments of Madras High Court in Thoznihalar Transport Company v. Valliammal (1990 ACJ 201 Madras, A. Subrahmanian v. Mani (1990 ACJ 37 Madras), National Insurance Company Limited v. Savitri Devi (1991 ACJ 1991) and I.O.C. v. Edward B.Juj.R (1995 ACJ 1106).
The learned counsel for the claimants also relied upon a judgment of Orissa High Court in Branch Manager, Bajaj Allianz General Insurance Co.
Ltd. v. Kumari Podha
[1]
. The facts in the said case are almost identical to the case on hand. It was also a case where the deceased who was working as a labourer in a tractor and trolley bearing Regn. No.OPR 12A 5531 and 5532 fell down while he was travelling from Landreju to Boudh, due to rash and negligent driving of the driver of the vehicle and thereafter the trolley ran over him leading to his death. While dealing with the issue as to whether the deceased has to be treated as a third party, a learned Single Judge of Orissa High Court, by relying upon the earlier judgment of the said Court in Divisional Manager, Oriental Insurance Co. Ltd. v. Minka Munda & two
[2]
others , observed as under:
"As regards the plea of the insurer that no extra premium having been paid to cover the risk of a labourer travelling in a tractor-trolley, the same is erroneous and misconceived. A tractor fitted with trolley is a goods carriage and as per Section 147 (1) of the M.V. Act, no extra premium is required to be paid to cover the liability of such a labourer carried in a goods vehicle."
Therefore, from the judgments referred above, the deceased has to be treated as a third party and the Insurance Company is liable to pay compensation to the claimants who are dependants and legal heirs of the deceased.
As the learned counsel for the appellant did not dispute the quantum of compensation awarded, the same need not be gone into. For the aforesaid reasons, I am of the view that there are no merits in the appeal and the same is dismissed. There shall be no order as to costs.
Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
C. PRAVEEN KUMAR,J Dt.18.06.2014 gbs
[1] 2014 (1) An.W.R. 275 (Ori.)
[2] 2009 (II) OLR 982