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2009 DIGILAW 970 (AP)

Citra Laxmi v. Balge Baaji

2009-12-31

NOUSHAD ALI

body2009
JUDGMENT : 1. This is an appeal filed by the claimants in O.P.No.220 of 1997, on the file of the learned IV Additional District Judge, East Godavari District, Kakinada, whereby the claimants’ petition, filed under Section 166 of the Motor Vehicles Act, 1988, was allowed and a compensation of Rs.1,35,200/- with interest of 12% per annum was granted in favour of the appellants against the Respondent Nos.1 and 2 and dismissed the petition against the third respondent-Insurance Company. The appellants have filed this Civil Miscellaneous Appeal only insofar as the dismissal of the O.P. against the third respondent-Insurance Company. 2. Heard the learned counsel for the appellants and no appearance has been made on behalf of the third respondent-Insurance Company despite service of notice on the third respondent-Insurance Company. 3. In this appeal, for the sake of convenience the parties are referred to as “claimants” and “respondents”. 4. The brief facts are that the Claimant No.1 is the wife and the Claimant Nos.2 to 4 are the children of one Satyanarayana (hereinafter referred to as “deceased”). On 13.09.2006 at about 8.30 p.m., the deceased went to Kakinada for purchasing some material for his business. After purchasing some material, he came to Annavaram on a bus with his goods and there, he boarded a lorry bearing Registration No.AP 5T 1242 to go to his village. When the lorry reached near Rajula Kothuur on NH 5 Road, another lorry bearing Registration No.MH 13B 4967, driven by the Respondent No.1 in a rash and negligent manner, while overtaking another lorry bearing Registration No.AHT 5351, dashed against the lorry bearing Registration No.AP 5T 1242 in which the deceased was travelling. In the said incident, the deceased-Satyanarayana died. The claimants, therefore, filed O.P.No.220 of 1997 and claimed a compensation of Rs.1,50,000/- towards loss of dependency, loss of estate and loss of consortium. 5. The Respondent Nos.1 and 2 remained absent and they were set ex parte. 6. The third respondent-Insurance Company opposed the claim on the ground that the claimants did not approach the Court with true and correct facts. There is no proof of marriage between the first claimant and the deceased. The deceased had already suffered amputation of his right hand prior to the accident. The third respondent-Insurance Company did not admit that the driver had valid and subsisting driving license and the vehicle had valid permit and road worthy. 7. There is no proof of marriage between the first claimant and the deceased. The deceased had already suffered amputation of his right hand prior to the accident. The third respondent-Insurance Company did not admit that the driver had valid and subsisting driving license and the vehicle had valid permit and road worthy. 7. The Claims Tribunal framed the following three issues: 1. Whether the accident took place due to the rash and negligent driving of the first respondent-driver of lorry bearing Registration No.MH 13B 4967? 2. Whether the petitioners are entitled for the compensation, if so, what amount and from which of the respondents? and 3. To what relief? 8. The first claimant examined herself as P.W.1 and examined six others and marked Exs.A1 to A13. As noted above, the Respondent Nos.1 and 2 remained ex parte. The third respondent-Insurance Company did not examine any witness, but filed Ex.B1-Certificate cum Insurance Policy. 9. The Claims Tribunal, based on Ex.A1, which is a certified copy of the registered Gift Deed, dated 14.06.1979, recorded a finding that the first claimant is the legally wedded wife of the deceased. Based on Ex.A5, which is an attested true copy of the Post-Mortem Certificate, dated 14.09.1996, the Claims Tribunal also recorded a finding that the age of the deceased was about 35 to 40 years. The earnings of the deceased was rated @ Rs.900/- per month and after deducting one-third towards his personal living expenses, the Claims Tribunal awarded Rs.1,15,200/-towards loss of dependency; Rs.10,000/- towards loss of estate; and Rs.10,000/-more towards loss of consortium. Thus, the Claims Tribunal awarded Rs.1,35,200/-in toto in favour of the appellants herein. 10. There is no challenge by way of appeal by the third respondent-Insurance Company either with regard to the factum of accident or with regard to the quantum of compensation awarded by the Claims Tribunal. No evidence was adduced on its behalf on any issue. In this view of the matter, there is no need to go into the questions as to whether the accident took place due to rash and negligent driving of the first respondent or with regard to the adequacy of compensation. 11. The only question to be considered in this Civil Miscellaneous Appeal is whether the Claims Tribunal ought to have attached liability to the third respondent-Insurance Company also in addition to the liability of the Respondent Nos.1 and 2. 12. 11. The only question to be considered in this Civil Miscellaneous Appeal is whether the Claims Tribunal ought to have attached liability to the third respondent-Insurance Company also in addition to the liability of the Respondent Nos.1 and 2. 12. There is no dispute that the offending vehicle was the lorry bearing Registration No.MH 13B 4967. There is also no dispute that the claimants’ petition was filed against the driver and owner of the said vehicle. There is also no dispute that no claim was made against the lorry bearing Registration No.AP 5T 1242 which the deceased purportedly boarded. There is also no dispute that the offending vehicle bearing Registration No.MH 13B 4967 was covered by valid insurance certificate. The Claims Tribunal declined to fasten the liability to the third respondent-Insurance Company on the premise that the deceased was an unauthorised passenger and that there was no evidence on record to show that the deceased boarded the lorry along with his goods on paying the charges. The Claims Tribunal treated the deceased as a gratuitous passenger and since Ex.B1-Insurance Policy did not cover such gratuitous passengers, the third respondent-Insurance Company was absolved from its liability. 13. On closer examination of the facts, it may be noticed that the deceased boarded the lorry bearing Registration No.AP 5T 1242 and that he was not a passenger in the offending lorry bearing Registration No.MH 13B 4967. The clear case of the claimants was that the lorry bearing Registration No.MH 13B 4967, driven by the first respondent in a rash and negligent manner, dashed against the vehicle bearing Registration No.AP 5T 1242, which resulted in the death of the deceased. It may also be noted that the claimants’ petition itself was filed against the vehicle bearing Registration No.MH 13B 4967 in respect of which the third respondent-Insurance Company had issued Ex.B1-Insurance Policy. It is, therefore, clear that these vital facts were apparently not noticed by the Tribunal while absolving the third respondent-Insurance Company from its liability. It would have been a different matter if the claim had been made against the vehicle bearing Registration No.AP 5T 1242 in which the deceased was said to have been travelling. In this view of the matter, the deceased cannot be treated to be a passenger, much less a gratuitous passenger, in the offending vehicle bearing Registration No.MH 13B 4967. It would have been a different matter if the claim had been made against the vehicle bearing Registration No.AP 5T 1242 in which the deceased was said to have been travelling. In this view of the matter, the deceased cannot be treated to be a passenger, much less a gratuitous passenger, in the offending vehicle bearing Registration No.MH 13B 4967. The deceased, therefore, in my view, would be a third party insofar as the offending vehicle is concerned. 14. It may also be seen that Clause (g) of Section 145 of the Motor Vehicles Act, 1988, “third party is defined as includes the Government”. The definition is an inclusive definition capable of wider import and in my opinion, it covers such of those between whom there is no privity of contract and I need not stretch the scope of the definition beyond this having regard to the factual position in this case. Suffice, the Claims Tribunal stated that the deceased was not a passenger in the offending vehicle bearing Registration No.MH 13B 4967 and in the circumstances, he should not have been treated as a gratuitous passenger in the said vehicle. The findings of the Claims Tribunal in this regard, are therefore, not sustainable and accordingly, the award in O.P.No.220 of 1997, dated 05.07.2000, on the file of the learned IV Additional District Judge, East Godavari, Kakinada, is modified. The third respondent-Insurance Company is also jointly and severally liable in addition to the Respondent Nos.1 and 2 herein. 15. Accordingly the Civil Miscellaneous Appeal is allowed. No costs.