* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.2077 of 2009
%17.11.2014
Between:
The New India Assurance Company Limited Rep. by its Divisional Manager, Kadapa. .... Appellant AND Shaik Jeelani Basha and another. ….
Respondents ! Counsel for Appellant : Sri T. Ramulu ^ Counsel for Respondent No.1 : Sri V. Eswaraiah Chowdary < Gist:
> Head Note:
? Cases referred:
1) 2005 (3) ALD 17
2) 2003 ACJ 1 (SC)
3) AIR 2004 SC 1340 = 2004 ACJ 428 (SC)
4) 2000 ACJ 1 (SC)
THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.2077 of 2009
JUDGMENT:
Aggrieved by the award dated 29.09.2008 in M.V.O.P.No.313 of 2008 passed by the Chairman, MACT-cum- Principal District Judge, Kadapa (for short “the Tribunal”), the 2nd respondent in the O.P/The New India Assurance Company Limited preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The case of the claimant is that on 17.05.2003 at about 12:10am, he was going to Rayachoty in the lorry bearing No.AP 04 U 1819 as lorry mechanic and when he reached near Tolla Ganganna Palli on Cuddapah—Kamalapuram main road, the driver of the lorry drove in a rash and negligent manner and dashed against a lorry bearing No.AP 21 U 3672 from behind. Thereby, the claimant sustained fracture to his both legs, right hand and pelvis. It is averred that the accident was occurred due to the fault of the driver of lorry bearing No.AP 04 U 1819. On these pleas, the claimant filed M.V.O.P.No.313 of 2005 and claimed Rs.3,00,000/- as compensation against respondents 1 and 2, who are the owner and insurer of the offending lorry.
b) Respondent No.1 initially filed counter and later remained ex parte. R.1 admitted that the claimant travelled in the offending lorry as mechanic as on the date of accident. R.1 denied the income of the claimant and the amount spent for his medical expenditure. R.1 submitted that the offending lorry was insured with R.2/Insurance Company and having valid policy covering the risk of the employees also and as such, R.2 has to indemnify his liability. Thus, R.1 prayed to dismiss the O.P.
c) Respondent No.2/Insurance Company filed counter and opposed the claim denying all the material averments made in the petition and urged to put the claimant in strict proof of the same. R.2 disowned its liability on the ground that the claimant travelled in the offending lorry as unauthorised passenger. Finally, R.2 contended that the compensation claimed was high and excessive and thus prayed to dismiss the O.P.
d) During trial, PW.1 was examined and Exs.A.1 to A.7 were marked on behalf of claimant. RW.1 was examined and Ex.B.1 was marked on behalf of 2nd respondent.
e) Award shows that regarding Issue No.1, the Tribunal considering the evidence of PW1—the claimant—cum—injured and Ex.A1—FIR and Ex.A.2—charge sheet held that the driver of the offending lorry was responsible for the accident. Sofaras quantum of compensation is concerned, the Tribunal awarded compensation of Rs.1,47,000/- with proportionate costs and interest at 6% p.a under different heads as follows:
Partial permanent disability Rs. 76,800=00 Medical expenses Rs. 25,200=00 Pain and suffering Rs. 40,000=00 Extra nourishment Rs. 3,000=00 Transport charges Rs. 2,000=00 Total: Rs.1,47,000=00 The Tribunal disallowed the contention of R.2 and fixed liability on both the respondents.
Hence, the appeal by New India Assurance Company Limited.
3) The parties in this appeal are referred as they stood before the Tribunal.
4) Heard arguments of Sri T. Ramulu, learned counsel for appellant/ Insurance Company and Sri V. Eswaraiah Chowdary, learned counsel for respondent No.1/claimant. Though notice sent to R.2 was served, but there is no representation on his behalf, hence treated as heard.
5 a) Challenging the award, learned counsel for appellant firstly contended that the claimant travelled in the crime lorry as an unauthorised passenger but not as a mechanic as claimed by him and this fact is clear from Ex.A.1—FIR, which was registered on the strength of none other than the claimant himself wherein he clearly mentioned that he boarded the lorry which was carrying cement bags on the midway and met with accident. He argued that the policy does not cover risk of an unauthorised passenger like claimant but the Tribunal failed to appreciate the facts and evidence in proper perspective and erroneously fastened the liability on the Insurance Company. Learned counsel submitted that the facts mentioned in the FIR can be taken into consideration. On this aspect, he relied upon the decision reported in APSRTC, rep. by its General Manager now re-designated as Managing Director vs. Musnam
[1]
Lalitha and others .
He alternatively argued that even assuming that he travelled in the capacity of a mechanic, still his risk will not be covered under the terms of policy because Ex.B.1—policy covers the risk of only third parties, owner-cum-driver and three employees.
b) Secondly, questioning the compensation, learned counsel argued that the Tribunal erroneously accepted the disability of claimant as 10% though no doctor was examined in the Court to prove the alleged disability and thereby compensation was unduly escalated. He thus prayed to allow the appeal.
6 a) Per contra, while supporting award, learned counsel for respondent No.1/ claimant firstly argued that the claimant travelled in the capacity of a mechanic and this fact was avouched by the owner of the lorry in his counter and also the claimant and in view of it, the contents in FIR need not be taken into consideration. Learned counsel further argued that the Insurance Company has not examined the driver of the lorry to prove its contention.
b ) Secondly, he argued, the claimant in fact suffered 20% disability but the Tribunal accepted only a moderate figure of 10% and accordingly awarded compensation and therefore, there is no need to revise the compensation. He thus prayed to dismiss the appeal.
7) In the light of above rival arguments, the points for determination in this appeal are:
1) Whether the Tribunal was right in fastening liability on Insurance Company?
2) Whether the compensation awarded by the Tribunal was just and reasonable or needs interference?
3) To what relief?
8) POINT No.1: This point is concerned, the pleading in the
O.P is that the claimant travelled in the lorry as mechanic of the 1st respondent and met with accident. In the evidence also his version is same. In the cross-examination he stated that he is a resident of Rayachoty, the lorry was going from Tadipatri to Chennai via Kadapa and he boarded the lorry at Yerraguntla. Speaking the reason for his travelling in the vehicle, he stated that the lorry was broke-down at Yerraguntla and so the owner who was the resident of Kadapa came to Rayachoty and took him to Yerraguntla for effecting repairs and that was why he happened to travel in the lorry as a mechanic. He denied the suggestion that he was only an unauthorised passenger. The above is the version of claimant. Be that it may, RW.1, who is the Administrative Officer of R.2 gave evidence basing on the contents of FIR. He deposed that the petitioner and another boarded the lorry at Muddanur cross road, as midway passengers and met with accident and therefore, the claimant was only an unauthorised passenger by his own version.
a) In the above context, I perused Ex.A.1—FIR. The FIR was registered by the police of Vallur P.S, Kadapa District on the strength of the submission of claimant recorded in the Government Hospital, Kadapa. The FIR contents read that the claimant is a mechanic at Rayachoty and on 15.05.2003 himself and his friend went to Penna Cement Factory at Tadipatri to meet the Manager to request him to appoint them as mechanics in that factory and after meeting him, they returned on the night of 16.05.2003 from Tadipatri in a Cement lorry and reached to Muddanur cross and got down from the lorry and there they boarded the offending lorry bearing No. AP 04 U 1819 loaded with cement to go to Rayachoty. On the way, due to the rash and negligent driving by the driver, the lorry met with accident. This was precisely the statement of the claimant. FIR No.20 of 2003 was registered on the strength of his statement. Needless to say that, the contents of his statement so far as they relate to the capacity in which he travelled in the lorry are diametrically opposite to his pleadings and evidence. Since the basis of the FIR is the statement of the claimant himself, the same can be taken into consideration to decide the issue. The contents of the FIR clearly go to show that the claimant travelled in the vehicle only as a midway passenger and hence he was an unauthorised passenger as he had nothing to do with the cement load in the lorry. His version in the evidence is not believable because in the cross-examination he admitted that lorry mechanics are available at Yerraguntla and Kadapa. If that is so, when the lorry broke down at Yerraguntla, the owner could have fetched a mechanic at Yerraguntla itself and for that matter, there was no need for him to come all the way to Rayachoty to take the claimant. This version was invented only to project that claimant travelled in the capacity of mechanic but not as unauthorised passenger. For the question whether the contents of FIR can be taken into consideration, the answer lies in Rule 476 (7) of the Andhra Pradesh Motor Vehicle Rules, 1989. The said rule says, the Tribunal among other documents can take copy of FIR as basis for deciding the claim. This aspect was made clear by a learned Single Judge of this High Court in Musnam Lalitha’s case (1 supra), wherein he held thus:
“Be it also noted that under Sub-rule (7) of Rule 476 of the Rules, the Claims Tribunal is entitled to award the claim on the basis of inter alia copies of F.I.R., Post-mortem certificate or certificate of enquiry by Medical Officer. In recent judgment in Nagappa v. Gurudayal Singh,(AIR 2003 SC 674) in Para 3, the Supreme Court laid down that the Tribunal shall have to treat the report of the accident as an application for compensation.”
For the above reasons, I accept the contents of FIR to decide the issue. When so, it is clear that the claimant was only an unauthorised passenger with reference to the crime lorry. It is needless to emphasise that Ex.B.1—policy does not cover the risk of an unauthorised passenger. There is a catena of decisions on this aspect and suffice for me to quote the judgment of Apex Court in New India Assurance Company
[2]
Limited vs. Asha Rani and others .
b) Now the next aspect is whether the appellant/Insurance Company can be directed to pay compensation and recover from the owner. I am not inclined to order so, because Ex.B.1— policy though in force was not covering the risk of an unauthorised passenger in the goods vehicle. Hence the question of ordering pay and recover does not arise. No doubt Hon’ble Apex Court with reference to a gratuitous passenger in National Insurance Co. Ltd. vs. Baljit Kaur and others[3] ordered the Insurance Company to pay compensation and recover from the owner but under different circumstances. The Supreme Court observed as follows:
“We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in New India Assurance Company Satpal Singh and others (2000 ACJ 1 (SC)). The said decision has been overruled only in Asha Rani’s case (supra). We, therefore, are of the opinion that the interest of justice will be subserved if the appellant, herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle.”
c) In my considered view, this observation made on equitable grounds applies only to limited cases i.e, those cases where, basing on New India Assurance Company vs. Satpal
[4]
Singh and others which was by then a law, if compensation was granted to a gratuitous passenger in a goods vehicle against insurance company and the appeal carried out by the insurance company is allowed basing on Asha Rani’s case (2 supra), in such circumstances though insurance company is exonerated by virtue of Asha Rani’s case (2 supra), still it can be directed to pay compensation at first and recover the same from the owner/insured. Except to those limited cases, pay and recover ordered in Baljit Kaur’s case (3 supra) will not apply to other cases.
d) It may be noted that in the instant case, by the date of award passed by the Tribunal on 29.09.2008, the judgment in Asha Rani’s case (2 supra) was already rendered (date of judgment 03.12.2002). As such the pay and recovery theory observed in Baljit Kaur’s case (3 supra) would not apply to the instant case.
In view of the above discussion, the owner of the vehicle (R.1 in the O.P) alone is liable to pay compensation but not the Insurance Company. This point is answered accordingly.
9) POINT No.2: The next argument of the appellant is that the Tribunal erroneously accepted the disability of deceased as 10% though the claimant had not examined doctor from the Medical Board which issued Ex.A.7—disability certificate and thereby compensation was unduly hiked. I verified the Ex.A.7 issued by District Medical Board, RIMS Hospital, Kadapa, wherein it is mentioned that due to malunion of fracture left femur, the claimant suffered 20% disability. Admittedly, the claimant has not examined any doctor from the Medical Board. Considering it, the Tribunal in Para 15 of its award has accepted the disability only as 10% and accordingly awarded compensation. It is true that generally the claimant has to examine the concerned doctor who issued disability certificate to prove the contents. However, in the instant case, a perusal of the cross-examination of PW.1 would show that except giving a general suggestion that the claimant has not suffered any disability, no specific question was put to him challenging the genuinity of Ex.A.7. As such, the Tribunal was right in considering Ex.A.7 though the doctor was not examined.
However, for non-examination of the doctor, the Tribunal confined the disability to 10%. In these circumstances, the computation of compensation made by the Tribunal cannot be said to be erroneous or high side having regard to the nature of injuries suffered by the claimant. Accordingly, this point is answered.
10) POINT No.3: In the result, this M.A.C.M.A. is allowed and ordered as follows:
a) The Appellant/Insurance Company (R.2 in the O.P) is exempted from the liability and it is directed that owner (R.1 in the O.P) shall pay compensation to the claimant.
b) However, pending appeal if the appellant/insurance company paid any compensation to the claimant, it can recover the same from the owner (R.1 in the O.P) but not from the claimant.
c) No costs in the appeal.
As a sequel, miscellaneous applications pending, if any, in this appeal shall stand closed.
U. DURGA PRASAD RAO, J Date: 17.11.2014
Note: L.R Copy to be marked: Yes / No
scs
[1] 2005 (3) ALD 17
[2] 2003 ACJ 1 (SC)
[3] AIR 2004 SC 1340 = 2004 ACJ 428 (SC)
[4] 2000 ACJ 1 (SC)