*HONOURABLE Dr. JUSTICE B. SIVA SANKARA RAO
+M.A.C.M.A. No.1067 of 2007
% Dated 16.04.2014
Between:
# Motte Ganga Devi and others
...Appellant
and
$ P.Pedda Subbarayudu and
Another ….Respondents ! Counsel for the Appellant : Smt. N.Sasikala ^ Counsel for respondent No.1 : none appeared Counsel for respondent No.2-
The National Insurance Company : Smt. M.Bhaskara lakshmi Limited < GIST:
>HEAD NOTE:
? Cases referred:
1. (2005(6) SCC 172
2. 2004(5) ALT 460
3. 2004(3) ALD 400
4. 2007 ACJ 1999
5. AIR 2008 SC 460
6. 2007(7) Scale 753=AIR-SCW (2007)4590=2007 ACJ 1999
7. 2007 ACJ 1043
8. 2004 ACJ page 1
9. 1990 ACJ page 201(Madras)
10. 990 ACJ(37) Madras,
11. 1991 ACJ 1991 Delhi
12. 2006 ACJ 789 Delhi
13. 1995 ACJ 1106(Bombay)
14. 2007(3) ALT 366
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.No.1067 OF 2007
JUDGMENT:
The claimants who are no other than wife, minor daughter and father of deceased by name Venkata Subbaiah, aged about 25 years as per the Ex.A.3 P.M. report, with the claim as traveling for unloading on the tractor propelled with trailer bearing No.AP21 U 1267 and 1268 belongs to the claim petiton-1st respondent insured with the 2nd respondent covered by Ex.B.1 policy though for additional premium covering risk of 5+1 hamalies collected Rs.150/- paid, filed claim under sections 140 and 166 of the M.V.Act and Rule 455 of APMV Rules, 1989 for Rs.3,00,000/- in O.P.No.200 of 2005 on the file of the learned Chairman of the Motor Accidents Claims Tribunal–cum–III Addl. District Judge, Anantapur (for short, ‘Tribunal’) and the tribunal by its award dated 20.03.2007 while exonerating the insurer awarded compensation as prayed for with interest at 7.5% p.a. only against the 1st respondent-owner of the crime vehicle.
2. It is impugning the same, the present appeal is preferred by the claimants with the contentions in the grounds of appeal that the tribunal gravely erred in appreciating the factum of the policy covered the risk of the deceased hamalies traveling for unloading the load of slabs on the trailer and the policy since covered risk of 6 hamalies from the additional premium paid and the tribunal should have considered that the deceased thereby not an unauthorized passenger as contended by the insurer, thereby sought for fixing joint liability against the insurer also by modifying the award of the tribunal allowing the appeal.
3. Whereas, it is the contention of the counsel for the insurer (from the 1st respondent-owner of the vehicle remained ex parte before the tribunal proof of service even sent to same address in receiving the appeal is a deemed service) that the award of the tribunal is just in exonerating the insurer from the settled position of law and there is no proof that the deceased was hamali and the tractor is meant for single seating capacity of the driver and not to allow any person and there is no permit and in the absence of which any person traveled is only unauthorized passenger and the tribunal when rightly came to the conclusion supported by reasons referring to the law, for this Court while sitting in appeal there is nothing to interfere. Hence, to dismiss the appeal.
4. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.
5). Now the points that arise for consideration in the appeal are:
1. Whether the award of the tribunal exonerating the insurer is unsustainable and requires interference by this Court to fix joint liability against both the respondents, if so, with what observations?
2. To what result? Point No.1:
6. The fact that the trailer is with load of kadapa slabs and it is propelled to the tractor in use is not in dispute for the purpose of the appeal. Ex.A.1 FIR which set the law into motion within few hours after the occurrence on 18.02.2005 speaks that the informant no other than the brother of the deceased narrated the occurrence about the deceased was traveling for the purpose of unloading kadapa slabs of the trailer in the tractor and it is categorically mentioned that the deceased sat by the side of the driver of the tractor. It further speaks while so travelling, it is the due to rash and negligent driving of the driver of the tractor, the deceased fell down and succumbed at the spot. The chargesheet filed by the police against the driver of the tractor covered by Ex.A.4 also speaks the same. It clearly proves from the same so also from the petition averments particularly para- 26 of the claim petition that the deceased was one of the hamalies for the purpose of unloading of the kadapa slabs loaded on the trailer travelling by sitting by the side of the driver of the tractor. As per Ex.B.2 permit of the vehicle, Ex.B.3, B.5 and B.6 copy of Registration Certificate extract, also speak that there is no permit for anybody to travel by the side of the driver of the tractor and the tractor is only with one seating capacity meant for the driver. Thereby, there is violation of the permit and policy conditions on the part of the owner and driver in allowing hamali to sit by the side of the tractor driver. By sitting by the side of the tractor driver with no space or provision for the deceased as hamali in traveling, he fell down and therefrom the vehicle ran over and he was succumbed, otherwise the accident could not be occurred. A hamali is not supposed to travel by sitting by the side of the driver of the tractor but for what is detailed supra. No doubt as per IMT 39 and 39(A) legal liability to persons employed in unloading upto 7 including driver and cleaner engaged service by the owner in occupation of the vehicle being covered. The Apex Court three judge Bench in National Insurance Company Limited [1] Vs. Prembhai Patel , also held that even Act policy covers the risk for workmen engaged by the owner of the vehicle for the purpose of loading and unloading without even payment of additional premium. In fact they are supposed to travel if there is permit or provision. The learned counsel for the insurer in this regard placed reliance upon [2] Vachala Vs.V.R.Kumar . It is under Section 147 of the M.V.Act referring to Rule 252(5) of A.P.M.V.Rules observed that in the goods trolley with seating capacity one meant for the driver when carrying of passengers is prohibited and there is no coverage of risk as question of anybody else either be owner of the goods or is authorized representative being allowed to travel, does not arise. The other decision places reliance is New India Insurance [3] Company Vs.Lodya Shankar a case under the Workmens Compensation Act, where it was observed that even owner of the vehicle took policy covered driver and cleaner of the lorry, the other persons to be carried therein, insurer cannot be made laible to cover the risk. Here, in view of the apex Court’s expression in Prembhai patel (supra), this decision is no longer a good law as Act policy itself covers the risk for hamalies for the purpose of unloading apart from additional premium paid and IMT 39 and 39-A discussed supra covered. The other decision of the apex Court relied upon in Ramashray singh Vs.New Indian Assurance Company [4] Limited known as Kalasy case in the claim for death of kalasy under Section 147 of the M.V.Act, the policy covers only risk of 13 passengers and driver and not risk of kalasi and as such held policy not covers the risk, the questioning of fastening liability against the insurer does not arise. Here, this decision also has no application as a workmen for unloading is covered from the Act policy apart from additional premium paid under Ex.B.1 policy. The other decision placed reliance is United India Insurance Company Limited Vs.
[5] Serjirao . In this case by relying upon Oriental Insurance [6] Company Limited Vs Brij Mohan in the claim under Section 147 of the M.V.Act, it was held that labourers traveling in tractor trailer, the insurance company has no liability. In these cases, the three judge Bench expression of Premabai patel(supra) not referred nor brought to its consideration. Further the proposition in this decision also has no application to the present facts for the reason that in this case even additional premium covering risk of six hamalies collected by the insurer undertaking the liability.
[7]
7. The other decision placed reliance is NIC Vs. Vedwati where it was held the insurance company has no statutory responsibility to get his vehicle insured for covering any passenger traveling in the goods carriage. In fact, the proposition also has no application herein as the deceased was one of the hamalies as discussed supra and not mere unauthorized passenger and the policy also covered the risk. The tribunal in fact not drawn its attention to these propositions.
8. Here it is also important to note that besides the evidence of P.W.1 with reference to Ex.A.1 and Ex.A.4 FIR and chargesheet supra also with reference to evidence of P.W.2 and Ex.A.3 P.M. report, the vehicle ran over the deceased hamali who sat travelling for the unloading by the side of the driver of the tractor. It is in fact, though the seating capacity for the tractor is one as proved from the contentions of the respondent/insurer with reference to Ex.B.2 to B.69 and of R.Ws. 1 to 3 and no additional provision there for any other person to be allowed to sit, he was proved as hamali and not mere unauthorized passenger. Thus, policy covers the right, though ther is violation of policy and permit conditions, on the part of the owner and driver as well as the deceased. It is no doubt but for his sitting by the side of the driver and traveling he could not met with death. Thus, there is also negligence on the part of the deceased, besides that of the tractor driver even the deceased was hamali and otherwise policy covers the risk, there is violation of permit without seating capacity in allowing the hamali to sit by the side of the driver of the tractor meant for single seating of driver. The law is fairly settled right from the three judges Bench expression of the Apex Court’s in National Insurance Company Limited Vs. Swaran [8] Singh , leave about earlier expressions of Sesha Reddy and Lehru that once the policy covers the risk under Section 149 read with 168 of the M.V.Act, the insurer is liable to indemnify the third party claim but for on such violation to pay and recover from the owner. No doubt the violation in those cases are defective license or fake license of driver. Here, the violation is allowing to sit by the side of the driver of the tractor the hamali without seating capacity and without permit. There is nothing to say the same is so fundamental much less to the conscious knowledge and willfully allowed by the owner for no such proof from the insurer to be totally exonerated. Apart from it, the moment the deceased fell down from the tractor, he is no longer hamali even unauthorizedly traveling without seating capacity by the side of the driver but for a third party, as per the settled expressions of different High Courts including of this Andhra Pradesh High Court viz., Thoznilalar Transport Company Vs.
[9] [10] Valliammalal , A. Subramani Vs.Mani [11] NIC [12] Vs.Savitridevi , Kanvar Shamsher singh Vs.Satbir Singh , [13] OICL Vs Edward Dcruz (Panaji Bench), and of this Court in [14] NICL Vs.Kurvo Yejji Mariamma .
9. Having regard to the above, without going into the other aspects as to by allowing a hamali to sit by the side of the driver of the tractor without permit and proceeding that violation is not so fundamental to exonerate but for pay and recovery direction to issue or not even, even taken for the time being has not authorized to travel by side of driver even hamali and this at par with unauthorized passenger; the moment he fell down he is a third party and there was so far as third party risk concerned, the insurer cannot be exonerated from liability. No doubt as discussed supra, for sitting by the side of the driver without seating capacity also from the negligence of the deceased as well as the driver of the tractor the accident could not be occurred; thereby there is 40% negligence on the part of the deceased as well as the tractor driver also in allowing the deceased hamali for unloading traveling to sit without seating capacity and fell therefrom but the remaining 60% is from the sheer negligence of the driver, as after fall, the vehicle ran over, being a third party for the insurer and the owner of the vehicle to be jointly liable as respondents to the claim.
10. Now coming to the compensation awarded by the tribunal of Rs.3,00,000/- as claim concerned, the age of the deceased was 25 years. The claim is under Section 166 of the M.V.Act. As per [15] Sarla Verma v. Delhi Transport Corporation for a person aged upto 25 years multiplier 18 and 26 to 30 it is 17. Even taken the age of the deceased above 25 years, it is just to take 17.5 and coming to the earnings of the deceased as hamali, a claim of Rs.3,000/- p.m. as claimed by the claimants and if 1/3rd deducted for personal expenses out of it the contribution is Rs.2,000/- p.m. x 12 x 17.5 (multiplier), it comes to Rs.4,20,000/-, apart from it loss of consortium the 1st claimant entitled is Rs.1,00,000/-, towards funeral expenses an amount of Rs.25,000/-, care and guidance to the minor child of Rs.10,000/-, towards loss of estate minimum of Rs.5,000/-, it all comes to Rs.5,60,000/- and even 60% liability of the insurer and insured out of it (after deducting 40% negligence of the deceased), it comes to Rs.3,36,000/- and what the tribunal awarded of Rs.3,00,000/- is no way excessive so also the rate of interest at 7.5%. As there is no dispute in the appeal on the quantum arrived, having that been made final, there is nothing to interfere to enhance. Accordingly, point No.1 is answered.
Point No.2:
11. In the result, the appeal is partly allowed by modifying the Award of the Tribunal exonerating the insurer by fixing joint liability on the insurer and insured of the tractor for 60% liability, by confirming the quantum of compensation of Rs.3,00,000/- awarded by the tribunal. In other respects the award of the tribunal holds good. There is no order as to costs in the appeal.
11. Consequently, Miscellaneous petitions, if any, pending in this appeal shall stand closed.
Dr. B. SIVA SANKARA RAO, J Date: 16.04.2014
Note: L.R. copy marked. B/O.
VVR
[1] [2]
[3]
[4]
[5] [6]
(2005(6) SCC 172
2004(5) ALT 460
2004(3) ALD 400
2007 ACJ 1999
AIR 2008 SC 460
2007(7) Scale 753=AIR-SCW (2007)4590=2007 ACJ 1999
[7]
2007 ACJ 1043
[8] [9]
2004 ACJ page 1
1990 ACJ page 201(Madras)
[10] [11] [12] [13] [14] [15]
1990 ACJ(37) Madras,
1991 ACJ 1991 Delhi
2006 ACJ 789 Delhi
1995 ACJ 1106(Bombay)
2007(3) ALT 366
2009 ACJ 1298