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2002 DIGILAW 570 (AP)

New India Assurance Co. Ltd. v. Nagalla Laxmi

2002-04-18

G.BIKSHAPATHY

body2002
( 1 ) THIS appeal has been filed by the insurance Company challenging the order passed by Motor Accidents Claims Tribunal, vizianagaram, in O. P. No. 195 of 1996. Similarly, cross-objections are filed by the claimants seeking enhancement of the compensation. In an accident that took place on 30-6-1995, one Ramana, who was driving the goods vehicle bearing No. APS-1815 involved in the accident, died. Therefore, the legal heirs of the deceased laid a claim for compensation of Rs. 1,50,000. ( 2 ) THE Tribunal after considering the evidence on record found that the driver of the vehicle was negligent in driving the vehicle and therefore held that on account of negligent driving of the vehicle, the accident had occurred. Coming to the question of compensation, the Tribunal arrived at a total compensation of Rs. 3,85,440 / -, but since the claim itself was restricted to Rs. l,50,000/-, the petition was allowed granting compensation of Rs. 1,50,000/- together with 12% interest from the date of petition till deposit of the amount in the Tribunal. Aggrieved by the said order, the insurance company has filed the appeal. Similarly, the claimants also filed cross-objections challenging the findings of the Tribunal and also claiming higher compensation. ( 3 ) IT is also to be noted that the claimants filed an application in C. M. P. No. 6012 of 1999 seeking amendment of the amount claimed in the O. P. and thus claiming enhanced compensation of Rs. 3,85,440/- on the ground that the Tribunal itself found that the claimants are entitled to such compensation. This Court finds that there is justification for allowing the amendment and accordingly, the amendment petition is allowed. ( 4 ) LEARNED Standing Counsel appearing for the appellant - insurance company submits that the vehicle was being driven by the owner-cum-driver and no extra premium was paid to cover the risk of the owner and premium was paid to cover the risk of the driver only. In the instant case, the driver is admittedly the owner of the vehicle and he was driving the vehicle at the time of accident and therefore, the legal representatives of the deceased are not entitled to compensation. He relies on the decision of the Division Bench of this Court in United Insurance Company Limited v. O. Mallu Bai and New India Assurance company Limited v. Palla Peda Polamma. He relies on the decision of the Division Bench of this Court in United Insurance Company Limited v. O. Mallu Bai and New India Assurance company Limited v. Palla Peda Polamma. ( 5 ) ON the other hand, learned counsel for claimants submits that it is always open to claimants to make a claim even though the owner was driving the vehicle. He relies on the decision of the Division Bench of this court in New; India Assurance Company Limited v. D. Satyanarayana. ( 6 ) THE questions that falls for consideration is whether the appeal filed by the insurance company is sustainable in law and whether the legal representatives of the deceased are entitled to compensation? ( 7 ) THE facts that have to be taken into consideration are that the vehicle in question is a goods vehicle and the owner himself was driving the vehicle and the vehicle was insured with the insurance company, which is the appellant herein. Further, the said vehicle met with an accident on 30-6-1995 and consequently, the driver died. The contention of learned Standing Counsel for the insurance company is that the driver of the vehicle was insured and the insurance company is liable only in the event of accident causing death or injuries to the driver and the owner is not covered by the insurance policy and therefore, the insurance company cannot be made liable. This contention appears to be appealing at the first blush, but on a deep scrutiny it can be said that the contention is unsustainable. ( 8 ) IN Mallu Bai case (supra) the Division bench observed as follows:"from a perusal of the excerpt of the insurance policy it is clear that the insurance Company is liable in respect of accident loss or damage subject to terms and conditions of and endorsements on the policy to indemnify the insured during the period 01-3-1983 to 29-2-1984 (both days inclusive ). The clause under the caption important Notice shows that the insured is not indemnified if the vehicle is used or driverv otherwise than in accordance with the Schedule. The schedule mentions that the vehicle should be driven (a) by the insured and (b) by any person if he is the insured s employee and is driving on his order or with his permission. The schedule mentions that the vehicle should be driven (a) by the insured and (b) by any person if he is the insured s employee and is driving on his order or with his permission. This means that the liability of the Insurance Company to indemnify the insured exists not merely in the case where the vehicle is driven by a driver who is an employee of the insured and a driver who is driving on his order or with his permission but also covers a case where the vehicle is driven by the insured provided the person driving the vehicle holds a valid driving licence at the time of the accident or holds a permanent driving licence and was not disqualified from obtaining such licence. The liability is specified in the agreement in three sections. Section I deals with loss or damage to the motor vehicle or its accessories: Section II deals with liability to third parties. Under this section it is provided that subject to the limit of liability the company will indemnify the insured against all sums including claims costs and expenses that the insurance company shall become legally liable to pay in respect of death or bodily injury to any person caused by or arising out of the use including loading or unloading of the motor vehicle and damage to property caused by the use of the motor vehicle. It is now well settled that the insured does not come within the meaning of the third party. " ( 9 ) LATER, the Division Bench of this Court in the case of D. Satyanarayana (supra) held that the legal representatives of owner of the goods vehicle are entitled to the compensation. In that case, the owner of the vehicle was travelling along with the goods and he died due to accident and in such a case, it was held that the legal representatives of owner are entitled to compensation. In that case, the owner of the vehicle was travelling along with the goods and he died due to accident and in such a case, it was held that the legal representatives of owner are entitled to compensation. The division Bench in paras 9 and 10 observed thus: "judicial opinion is heavy for the proposition that where compensation is claimed in respect of death or bodily injury caused to the owner of the goods while travelling in a goods vehicle along with his goods, the insurer is liable to pay the compensation (See (1) Meesala suryanarayana v. Goli Satyavathi - 1979 (1) APLJ 401 ; (2) Raghunath Eknath Hivale v. Shardabai Karbhari Kale - 1986 ACJ 460; (3) Oriental Insurance Company limited v. Smt. Irrawwa - AIR 1992 Kar 321 ; and (4) Oriental Fire and General insurance Company Limited v. K. Hammantha Rao - 1996 (4) ALD 99 (DB) = 1996 (4) ALT 84 ). In fact, learned counsel for the appellant is fair enough to admit this proposition of law. However, relying on the fact that the policy of insurance does not cover the owner s risk, he reiterates that when the owner of the goods happens to be owner of the vehicle also, the insurer is not liable to pay compensation. We are unable to countenance this submission in view of the settled principle of law that the terms of the policy of insurance need not be construed strictly and they should be read down to advance the main purpose of the contract as enunciated by the Supreme Court in skandia Insurance Company Limited v. Kokilaben Chandravadan - AIR 1987 SC 1184 in the following terms: when the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach the very same conclusion would emerge in obeisance to the destrine of reading down the exclusion clause in the light of the main purpose of the provision so that the exclusion clause highlighted earlier. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinaire approach the very same conclusion would emerge in obeisance to the destrine of reading down the exclusion clause in the light of the main purpose of the provision so that the exclusion clause highlighted earlier. The effort must be to harmonise the two instead of allowing the exclusion clause to snipe successfully at the main purpose . ( 10 ) THE above principle has been approvingly quoted by the Supreme Court in B. V. Nagaraju v. M/s. Oriental Insurance company Limited, Hassan - AIR 1996 SC 2054 . In Sohan Lal Passt v. P. Sesh Reddy - (1996) 5 scc 21 , the Supreme Court after referring to several beneficial provisions introduced by the Parliament both in the Motor Vehicles act, 1939 and the Motor Vehicles Act, 1988 for the purpose of protecting the interest of the claimants concluded: even Parliament is conscious that right to claim compensation by the claimants in connection with the motor vehicles accidents should not be defeated on technical grounds . (Para 11) ( 11 ) LET us take a case where the owner of vehicle walking on a highway was knocked down by his own vehicle driven rashly and negligently by a duly appointed driver having a valid licence. It is permissible for the insurer of the said vehicle to avoid is liability to satisfy the claim laid against it by his legal representatives on the ground that the policy of insurance does not cover owner s risk? In our considered view, the answer could only be no , particularly in the light of the principle enunciated in Skandias case. We have, therefore no hesitation to add that the same principle will apply in all fours to the facts of the case in CMA No. 1041 /90. " ( 12 ) THE same principle could be applied to this case where the owner was driving the vehicle, which he owns. Whether he was travelling along with his own goods ordering his own goods vehicle makes no difference in the eye of law. Even though in Mallu Bai case the Division Bench held that the insured did not fall within the definition of third party, yet in later decision the position was made clear. Further the premium was already paid to cover the risk of the driver. Even though in Mallu Bai case the Division Bench held that the insured did not fall within the definition of third party, yet in later decision the position was made clear. Further the premium was already paid to cover the risk of the driver. In such an event, the owner gets substituted as driver of the vehicle and such a person is entitled for compensation. The words "any person" occurring in Sections 95 (l) (b) (i) has to fee interpreted for advancing the purpose for which Section 95 was engrafted in the Act and thus construed, the expression any person also includes the owner of the goods vehicle whether he was travelling or driving. In this case, it was not disputed that the owner was having valid driving licence. Under these circumstances, I have to necessarily interpret the policy to the advantage of the victims and not to curtial the rights of victims of motor accidents, may be the owner, his dependents or the third parties. Consequently, the issue relating to negligence on the part of owner-cum-driver pales into insignificance. ( 13 ) FOR the aforesaid reasons, I am not inclined to accept the contention raised by the learned Standing Counsel for the insurance company. Accordingly, the appeal filed by the insurance company is dismissed. ( 14 ) SINCE the amendment has been allowed and the Tribunal has already assessed the compensation of Rs. 3,85,440/-, the said compensation amount has to be granted with interest at 9% per annum from the date of petition till date of payment instead of interest at 12% per annum as ordered by the Tribunal. ( 15 ) ACCORDINGLY, the appeal is dismissed and the cross-objections are allowed to the extent indicated above. No order as to costs.