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2008 DIGILAW 614 (AP)

Oriental Insurance Co. Ltd. v. SK. Galib Saheb

2008-08-04

G.BHAVANI PRASAD

body2008
JUDGMENT : G. BHAVANI PRASAD, J. 1. The common order/award in M.V.O.P. Nos. 1180, 115, 116 and 135 of 2003 dated 24.7.2006 by the Motor Accidents Claims Tribunal-cum-Ninth Additional District Judge, Guntur and the order/award in M.V.O.P. No. 1181 of 2003 dated 19.12.2005 before the Motor Accidents Claims Tribunal-cum-Fifth Additional District Judge, Guntur are the subject of these appeals respectively at the instance of the insurer. 2. All the claims under appeals arose out of a motor accident that occurred on 28/29.11.2002 at 2 a.m. involving a lorry No. ABK 9547 belonging to the respondent No. 1 and insured with the respondent No. 2 in the claim petitions. The driver of the lorry was claimed to have driven the lorry in a rash and negligent manner resulting in the accident and death of some and injuries to others. The deceased and the injured involved in these claim petitions were claimed to be coolies/labourers working under Shaik Uddandu, who were travelling in the subject lorry with their personal belongings and work instruments from Hyderabad to their village. 3. The claims for compensation were not resisted by the owner of the lorry, but were contested by the insurer who had no information about the accident from the insured and who put the claimants to strict proof of their allegations and entitlement. The insurer claimed that it learnt about the violation of the terms and conditions of the policy and sought for dismissal of the claims. 4. In all the claim petitions, appropriate issues were framed by the Tribunal about the manner of the accident, the truth of the death of or injuries to different persons and entitlement of the claimants to compensation. 5. M.V.O.P. Nos. 1180, 115, 116 and 135 of 2003 were clubbed and tried together, during the inquiry, in which PWs 1 to 6 were examined and Exhs. Al to A13 and Exhs. XI to X3 were marked for the claimants, while RWs 1 to 3 were examined and Exhs. Bl to B5 were marked for the respondents. In M.V.O.P. No. 1181 of 2003 PWs 1 and 2 and RWs 1 and 2 were examined and Exhs. Al to A5, Bl to B5 and XI were marked. 6. Al to A13 and Exhs. XI to X3 were marked for the claimants, while RWs 1 to 3 were examined and Exhs. Bl to B5 were marked for the respondents. In M.V.O.P. No. 1181 of 2003 PWs 1 and 2 and RWs 1 and 2 were examined and Exhs. Al to A5, Bl to B5 and XI were marked. 6. The Tribunal rendered the impugned common award in the clubbed matters holding that lorry was proved to have been driven rashly and negligently resulting in the accident and finding that the insurance policy, Exh. B1, was in subsistence, the Tribunal opined that the deceased/injured travelled in the crime lorry as owners of the goods and are, hence, entitled to be compensated both by the owner and the insurer. While holding that any violation of the terms and conditions of the insurance policy was not proved, the Tribunal arrived at different quantum of compensation payable to the claimants in the four matters. 7. But when it came to the award in M.V.O.P. No. 1181 of 2003, the Tribunal concluded that the deceased therein travelled in the subject lorry as an unauthorised passenger and Tribunal did not accept the claim that he was travelling as the owner of any goods in the lorry. Still the Tribunal came to the conclusion that as the driver had effective and valid driving licence at the time of the accident, the insurer is liable to pay compensation to the claimants initially and is at liberty to recover the same from the insured, if at all it is established that the owner violated the terms and conditions of the insurance policy. The Tribunal accordingly directed payment of compensation to the claimants at the quantum determined by it and recovery of the same from the owner. 8. The insurer challenged the awards mainly on the ground that deceased/injured respectively involved were unauthorised passengers travelling in the lorry/goods vehicle and the claimants are, hence, not entitled to claim any compensation from the insured or insurer. In M.A.C.M.A. (SR) No. 4346 of 2007, the insurer questioned the direction to pay and recover. 9. In M.A.C.M.A. (SR) Nos. 4352 and 4346 of 2007, M.A.C.M.A.M.P. Nos. In M.A.C.M.A. (SR) No. 4346 of 2007, the insurer questioned the direction to pay and recover. 9. In M.A.C.M.A. (SR) Nos. 4352 and 4346 of 2007, M.A.C.M.A.M.P. Nos. 855 and 856 of 2007 were filed respectively to condone the delay in filing the appeals and for the reasons stated in the affidavits in support of the petitions, the delay is condoned and the said petitions are allowed herewith. The M.A.C.M. appeals shall be respectively registered and are being disposed of along with the other three appeals, as all the appeals raised the same common question. 10. Mr. B. Devanand, learned standing counsel for insurer strenuously contended that on the probabilities arising out of the evidence, the deceased/injured involved cannot be considered to be owners of the goods travelling in the subject lorry at the relevant time. As they were unauthorised passengers who entered into the lorry on the way with their luggage' and personal effects including their work instruments and died or injured in the accident, the insurer or insured cannot be made liable for any claim. 11. Mr. A. Rajendra Babu, the learned Counsel for the claimants, on the other hand, referred to the evidence on record including that of the driver which showed that each of the deceased/injured carrying goods weighing more than 110 kg were allowed entry into the lorry as owners of goods and travelled as such making the insurer also liable to compensate. 12. Both the learned Counsel referred to certain precedents, which will be referred to in due course. 13. Point for consideration is whether the deceased/injured involved in the accident can be considered to be owners of goods being carried in the vehicle or as unauthorised passengers and consequently whether the insured and insurer have any liability to compensate them for the injuries or death respectively. 14. The admitted facts are that the subject lorry was owned by the respondent No. 1and was insured with the respondent No. 2 in the claim petitions and was carrying 60 boxes of cheap liquor on that day from Hyderabad to Guntur and on the way six persons/the deceased/injured boarded the lorry along with their personal belongings and work instruments before the vehicle met with the accident resulting in the death of some and injuries to others. The evidence of the witnesses for claimants, more particularly, PW 6 suggests that Rs. The evidence of the witnesses for claimants, more particularly, PW 6 suggests that Rs. 100 each was collected from travelling coolies towards the persons and their goods. PW 6 described the goods being carried as the luggage/personal effects which were kept in the body of the lorry, while travellers boarded in the cabin. The owner of the lorry in his evidence claimed to have specifically instructed the driver not to carry any passengers and asserted that carrying any passengers in the lorry is outside the employment of the driver. However, the driver as RW 2 stated that on instructions from the owner, he allowed the coolies to board the lorry along with their work instruments and personal belongings as owners of such goods. He tried to explain that he collected Rs. 100 from each person as each person was carrying 100 kg. The reasoning of all the witnesses regarding the reason for which the labourers/coolies travelled in the lorry, is that it was not possible to carry the heavy work instruments in any bus. The evidence of the driver further shows that the permit for the lorry for that journey was only to load the liquor and no other goods and the administrative officer of the insurer attempted to claim that these persons were travelling as unauthorised passengers. 15. In the common award in the first four matters, Tribunal considered that the evidence of PWs 2 to 4, PW 6 and RW 2 suggests that these persons were traveling with their luggage in the lorry weighing 100 kg each and were, therefore, travelling as owners of the goods. Consequently, the Tribunal assessed the quantum of compensation to which the claimants are entitled and awarded the same against both the respondents. 16. However, when it came to M.V.O.P. No. 1181 of 2003, the Tribunal assessed the evidence in detail and came to the conclusion that these persons boarded the lorry with their luggage, which cannot be termed or considered as goods carried in the lorry. The Tribunal referred to the first information report and charge-sheet mentioning the items carried as luggage but not as goods and stated that these persons were travelling in the lorry as unauthorised passengers in violation of Rule 252 of the Andhra Pradesh Motor Vehicles Rules, 1989. The Tribunal referred to the first information report and charge-sheet mentioning the items carried as luggage but not as goods and stated that these persons were travelling in the lorry as unauthorised passengers in violation of Rule 252 of the Andhra Pradesh Motor Vehicles Rules, 1989. The Tribunal, hence, concluded that the insurer cannot be liable for any compensation, while the insured is so liable, but directed the insurer to pay and then recover the same from the insured. 17. Section 2(13) of the Motor Vehicles Act, 1988, defines the word 'goods' as follows: 2(13) 'goods' includes livestock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle; The personal luggage of the persons travelling in the vehicles or personal effects carried in a motor car or in a trailer attached to a motor car are, therefore, not included within the meaning of the word 'goods' and when Section 147(1)(b)(i) of the Motor Vehicles Act, 1988, refers to owner of goods or his authorised representative carried in a vehicle, it obviously does not refer to the luggage or personal effects carried in a vehicle or the personal luggage of the passengers travelling in the vehicle. The Law Lexicon referred to by the learned Counsel for the claimants dealt with the meaning of 'goods' in different contexts and limitations imposed under enactments were stated to be applicable as specifically indicated under the respective statutes. Therefore, even if the luggage or personal effects or personal luggage may be 'goods' in generic sense, they cannot be 'goods' in the specific sense of the definition u/s 2(13) of the Motor Vehicles Act, 1988. 'Luggage', on the other hand, is again referred to in the Law Lexicon referred to by learned Counsel for the respondents as meaning 'baggage' belonging to a traveller or passenger and 'baggage' means 'the collection of property in packages that a traveller takes with him on a journey; luggage'--Shorter Oxford English Dictionary. The Law Lexicon obviously extracts the passage in Oriental Fire and General Insurance Company Ltd. vs. Bondili Sitharam Singh and Others, AIR 1995 AP 268 . The Law Lexicon obviously extracts the passage in Oriental Fire and General Insurance Company Ltd. vs. Bondili Sitharam Singh and Others, AIR 1995 AP 268 . In that case, the learned Judge was specifically referring to IMT 14 (b) in the insurance policy in question which refers to the liability under the statute in respect of death or injury as being confined to the owner or representative of the owner of the goods, the charterer or representative of the charterer of the truck and any person directly connected with the journey in one form or another whilst being carried in or upon or entering or mounting or alighting from the motor vehicle. The learned Judge was also referring to the definition of 'goods' under Motor Vehicles Act, 1939 which is identical as in the present statute and noted that the deceased carrying rice, oil, etc., as personal baggage or luggage cannot be said to be 'connected to the conveyance of goods'. The learned Judge also noted that the lorry was carrying red metal with which the deceased had nothing to do. On the same analogy, any term or condition of the insurance policy in question herein was not shown to be covering any person beyond those described in IMT 14(b) in the said decision nor is it claimed that the lorry was engaged for the conveyance of any goods of the deceased/injured labourers. The lorry was specifically permitted by the permit to carry cheap liquor and it was, in fact, carrying 60 boxes of the same being hired for the specific purpose. If so, the labourers carrying their work instruments or personal belongings cannot be considered to be carrying goods in the sense of Section 2(13) of the Motor Vehicles Act, 1988, to make the insurer liable under the statutory policy of insurance by virtue of Section 147 of the Motor Vehicles Act, 1988. 18. In Deddula Padmavathi, Deddula Subba Rao, Deddula Sankaraiah and Deddula Rama Tulesamma vs. Maddala Srinivasa Rao and National Insurance Company Limited, (2004) 6 ALT 496 , the learned Judge was dealing with a passenger who entered the goods vehicle on the way with his vegetable bags. 18. In Deddula Padmavathi, Deddula Subba Rao, Deddula Sankaraiah and Deddula Rama Tulesamma vs. Maddala Srinivasa Rao and National Insurance Company Limited, (2004) 6 ALT 496 , the learned Judge was dealing with a passenger who entered the goods vehicle on the way with his vegetable bags. The learned Judge, of course, referred to the volume and weight of the bags being carried having relevance to find out if they are luggage or goods within the meaning of Section 2(13) of the Motor Vehicles Act, 1988, but while referring to Section 147(1)(b)(i) of the Motor Vehicles Act, 1988, the learned Judge explained the intendment of Parliament to be to cover the risk of owner of goods or his authorised representative who actually engaged the goods vehicle for the transport of his goods from one destination to another destination and are not intended to cover the persons who boarded the goods vehicle carrying the goods of some others in the midway with some luggage being carried with them. If vegetable bags were considered to be personal luggage of the passenger, there is no reason as to why work instruments and personal belongings cannot be considered so. The volume of the said articles, which cannot be carried in a bus, may not be relevant and the learned Judge also noted the violation of Rule 252 of the Andhra Pradesh Motor Vehicles Rules in that case also. 19. Later in The Oriental Insurance Co. Ltd. vs. Guntur Sambrajyam and Others, (2007) 5 ALD 677 , another learned Judge referring to 'goods carriage' and 'goods' as defined in the statute and also the case-law on the aspect, concluded that the deceased travelling in the goods vehicle along with rice bags was only an unauthorised passenger making the insurer not liable. Holding that the risk of such passenger is not covered by statutory insurance policy, the learned Judge, however, applied the principle of pay and recover obviously because the amount was paid by insurer. The same learned Judge again in Chejerla Munichandraiah vs. Shaik Noorjahan and Another, (2008) 1 ALD 35 , reiterated the principle in respect of a person carrying a sewing machine on the goods vehicle in which he was travelling. The learned Judge considered the sewing machine to be personal luggage, which fastens no liability to the insurer and again applied the principle of pay and recover on the facts. 20. The learned Judge considered the sewing machine to be personal luggage, which fastens no liability to the insurer and again applied the principle of pay and recover on the facts. 20. The principle was reiterated in The National Insurance Company Limited vs. Mashetty Vijaya Laxmi and Others, (2007) 6 ALT 370 , wherein another learned Judge held a person carrying bundles of clothes with which he does business, in the goods vehicle to be not an authorised passenger. The learned Judge considered them to be luggage or personal effects or personal luggage and the insurance policy to be not covering such a passenger. Learned Judge noted, of course, that the owner cannot be absolved from liability on account of the tortious act on the part of the driver, which resulted in the accident of the vehicle during the course of his employment. So, the learned Judge sustained the award against the owner. 21. The Supreme Court in Smt. Thokchom Ongbi Sangeeta @ Sangi Devi and Another vs. Oriental Insurance Co. Ltd. and Others, (2007) 11 SCC 750 , also made it clear that the difference in 'language' between 1939 and 1988 Acts had to be noted in respect of goods vehicle and goods carriage. The Supreme Court pointed out that there is no reference to any passenger in a goods carriage in the new Act and, therefore, the statutory insurance policy will not cover any passenger travelling in a goods carriage, due to which the insurer would have no such liability. The principle is, thus, reiterated on more than one occasion and no further precedents need to be replicated herein. 22. On the admitted facts herein, it is, thus, clear that deceased/injured involved were travelling as unauthorised passengers in a goods vehicle as rightly found by the Tribunal in M.V.O.P. No. 1181 of 2003. Evidence of driver as RW 2 contradicted by his owner, RW 1 in the clubbed matters cannot be considered as representing the truth, when the witnesses for the claimants were not very specific about engaging the subject vehicle for carrying the goods even if they were called as such within the meaning of Section 2(13) of the Motor Vehicles Act, 1988 and that the deceased/injured incidentally boarded the lorry along with the goods as their owners. The manner in which the petitions were worded and the witnesses for the claimants deposed may indicate that when the persons requested for being carried by the vehicle along with the articles they were carrying, which included the personal belongings and work instruments, the driver charging Rs. 100 each in lump sum allowed them to do so keeping the articles in the body of the lorry and allowing the persons into the cabin of the lorry. If so, the goods vehicle cannot be considered to have been engaged or hired for carrying the said goods, the owners of which also were permitted to travel in the vehicle. If these persons are, hence, unauthorised passengers as rightly concluded in M.V.O.P. No. 1181 of 2003, on an objective and clear analysis of the evidence on record, insurer cannot be made liable for any compensation under the terms of the statutory insurance policy, while the insured/owner of the lorry, of course, cannot escape from his liability in terms of the principle reiterated in The National Insurance Company Limited vs. Mashetty Vijaya Laxmi and Others, (2007) 6 ALT 370 . 23. The awards in question have to be, therefore, set aside against the insurer and as the owner/insured or the claimants did not, in any manner, challenge the quantum of compensation or the liability of the owner, the awards shall be confirmed in respect of claimants vis-a-vis the owner, respondent No. 1. 24. The principle of pay and recover applied in M.V.O.P. No. 1181 of 2003 also cannot be extended in these cases, as firstly there was no possibility of fastening any liability even remotely to the insurer on the admitted facts and secondly as no payment has, so far, been made to the claimants by the insurer either before the Tribunal or before this Court. Though full compensation amount was deposited to the credit of these appeals by the insurer in terms of the orders of interim stay, in view of the positive result in favour of the insurer in these appeals, the insurer will be entitled, as a consequence, to withdraw those amounts in deposit, of course, on expiry of any time for further appeal or any other remedy against this judgment. 25. In the result, the awards in M.V.O.P. Nos. 25. In the result, the awards in M.V.O.P. Nos. 1180, 115, 116 and 135 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-Ninth Additional District Judge, Guntur dated 24.7.2006 and the M.V.O.P. No. 1181 of 2003 on the file of Motor Accidents Claims Tribunal-cum-Fifth Additional District Judge, Guntur dated 19.12.2005 are set aside in respect of the appellant Oriental Insurance Co. Ltd., respondent No. 2, in the claim petitions before the Tribunal and are confirmed in respect of the claimants and the respondent No. 1 therein and the appeals are allowed accordingly without costs.