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2008 DIGILAW 472 (AP)

New India Assurance Co. , Ltd. , Khammam, Khammam District v. M. Srinivas

2008-07-07

C.Y.SOMAYAJULU

body2008
COMMON ORDER :-As these two appeals arise out of a common award, they are being disposed of tIy a common order. 2. CMA No.157l of 2003 arises out of OP No.388 of 1996 and CMA No.1587 of 2003 arises out of OP No.387 of 1996. Both the O.Ps are filed under Section 166 of the Motor Vehicles Act, 1988 (the Act) seeking compensation for the injuries suffered by the claimants therein who are the first respondents in these appeals, alleging that when they were proceeding to their native place with their goods in the lorry bearing No. AEK 6759 belonging to the 2nd respondent in the appeals, which is insured with the appellant in the appeals on 25.3.1995 that lorry met with an accident due to the rash and negligent driving of the driver of the lorry resulting injuries and consequent permanent disability to them. The 2nd respondent i.e., the owner of the lorry chose to remain ex parte in both the claim petitions. Appellant filed its counter contesting the claims inter alia contending that it is not liable to pay any compensation to the claimants as they were travelling as passengers in a goods vehicle. 3. The Tribunal clubbed both the claim petitions and recorded common evidence. The claimants examined themselves as P.Ws.1 and 2 and marked Exs.A.1 to A.5 on their behalf. Appellant examined one witness as R.W.1 and marked EX.B.1 on its behalf 4. The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the lorry and passed awards for Rs.35,000/- in favour of the claimant in OP No.388 of 1996 and for Rs.45,000/- in favour of the claimant in OP No.387 of 1996 against the 2nd respondent and the appellant jointly and severally, without giving a finding on the contention of the appellant that it is not liable to pay compensation payable to the claimants, on the ground that the insurance taken by the second respondent was in force by the date of accident. Hence these appeals by the insurer of the lorry involved in the accident. 5. The point for consideration in these appeals is whether the appellant is not liable to pay the compensation payable to the claimants in the claim petitions? 6. Hence these appeals by the insurer of the lorry involved in the accident. 5. The point for consideration in these appeals is whether the appellant is not liable to pay the compensation payable to the claimants in the claim petitions? 6. The averment in the claim petitions is that the claimants, along with some other villagers, boarded the lorry to go to their village by paying hire to the driver of the lorry and were travelling in the cabin. There is no reference to any goods being carried by the claimants in the claim petitions. But the claimant in OP No.388 of 1996 stated that he was carrying four rice bags from Jadcherla to Kalwakurthi. Except his ipsi dixit, which is not found in the pleadings, there is no other evidence on record to show that there were rice bags in the lorry involved in the accident. The specific averment in the claim petitions is that the claimants along with several others boarded the lorry by paying hire to the driver of the vehicle. So, it is clear that the claimants and other villagers boarded the lorry midway of its journey and did not take the lorry on hire from its owner for using it as a goods vehicle and that the driver of the lorry used it as a stage carriage by picking up passengers in the midway of its journey. Therefore, it is clear that the claimants were travelling as passengers in the goods vehicle and were not travelling therein as the owners of the goods, being transported therein, from one place to another. 'Goods vehicle' is primarily meant to transport goods from one place to another. The owner of those goods or his representative can be carried in the goods vehicle and in such case the insurance covers their risk. But if any person boards the said goods vehicle in the midway with some of his 'articles' to go to another place along with those articles, those articles being carried by him would not become 'goods' contemplated by Section 2(13) of the Act. Those articles would be in the nature of his personal effects only. So merely because a person boards a goods vehicle in the midway along with some articles, he would not attain the status of the owner of the goods being carried in the goods vehicle as contemplated by Section 147 of the Act. Those articles would be in the nature of his personal effects only. So merely because a person boards a goods vehicle in the midway along with some articles, he would not attain the status of the owner of the goods being carried in the goods vehicle as contemplated by Section 147 of the Act. For any claimant to have the benefit of Section 147 of the Act to make the insurer liable, he should have hired the lorry for transporting his goods from one place to another and should be accompanying those goods in the vehicle either as their owner or the representative of their owner. Person who boards the goods vehicle in the midway with some articles would only be a passenger, and would not come to the sweep of 'owner of the goods' contemplated by Section 147 of the Act. In view thereof, the claimants can only be taken as fare paying passengers in a goods vehicle. So in view of the ratio in New India Assurance Co. Ltd. v. Asha Rani, 2003 (l) ALD 18 (SC) = 2003 (2) SCC 223 , appellant cannot be made liable, because insurance does not cover the risk of passengers travelling in a goods vehicle. The point is answered accordingly. 7. As the 2nd respondent (owner of the offending vehicle) did not prefer any appeal questioning his liability, the claimants can recover the amount awarded by the Tribunal from the 2nd respondent. 8. In the result, the appeals are allowed and the awards passed by the Tribunal against the appellant are set aside, making it clear that the Ist respondent in these appeals can execute the award against the 2nd respondent in the appeals. No order as to costs.