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2010 DIGILAW 879 (AP)

National Insurance v. Gunja Shivaji

2010-09-09

C.V.NAGARJUNA REDDY

body2010
Judgment This Civil Miscellaneous Appeal arises out of award, dated 08-10-2002, in MVOP.No.545 of 1997 on the file of the III Additional District Judge-cum-Motor Accidents Claims Tribunal, Vijayawada (for short ‘the Tribunal’). Respondent No.3- Insurance Company in the MVOP is the appellant herein. By the impugned award, the Tribunal awarded compensation for the injuries sustained by respondent No.1. The brief facts leading to filing of this appeal are stated hereunder: On 21-05-1996, respondent No.1 was travelling along with his parents in a lorry bearing registration No.AP 36T 5429. The said lorry met with an accident at about 12 midnight at a place called Chellaramaram. Respondent No.1 has sustained injuries and received medical treatment. It is stated that the left hand of respondent No.1 was amputated. Respondent No.1 (being minor represented by his father Gunja Sreenu) filed the above-mentioned MVOP claiming a sum of Rs.1 lakh as compensation for suffering the physical disability, pain and suffering etc. While the owner of the lorry remained ex parte, the appellant- Insurance Company has contested the claim. The Tribunal, after a full-fledged trial, passed the impugned award. Before the Tribunal, the main plea raised by the appellant was that respondent No.1 being a gratuitous passenger, travelling in a goods vehicle, is not entitled to payment of any compensation. In support of the claim, on behalf respondent No.1, his father viz., Gunja Srinu has deposed as PW.1. PW.1 has stated in his evidence that in all, six coolies including himself and his son i.e., respondent No.1 herein boarded the lorry and that while travelling, the accident occurred on account of rash and negligent driving of respondent No.2- driver of the said lorry. In the cross-examination made on behalf of the appellant, PW.1 admitted that respondent No.1 was aged six years at the time of the accident and that he cannot attend to any coolie work. The Tribunal rejected the contention of the appellant that it is not liable to pay compensation as the insurance policy does not cover gratuitous passengers travelling in a goods vehicle. The Tribunal further held that it is the specific case of P.W.1 that respondent No.1 is not gratuitous passenger and that he is a coolie and that as no suggestion was made on behalf of respondent No.2- driver of the vehicle, who participated in the trial, that respondent No.1 is a gratuitous passenger, the evidence of PW.1 has become unchallenged. The Tribunal further held that it is the specific case of P.W.1 that respondent No.1 is not gratuitous passenger and that he is a coolie and that as no suggestion was made on behalf of respondent No.2- driver of the vehicle, who participated in the trial, that respondent No.1 is a gratuitous passenger, the evidence of PW.1 has become unchallenged. The Tribunal went a step further and held that even assuming that respondent No.1 was a gratuitous passenger, he is still entitled to compensation from the Insurance Company in view of the judgment of this Court in Vijaya Kumar Bhavani Rao Kulkarni vs. Khadadarabai and others 2002 ACJ 602. At the hearing, Sri Kota Subba Rao, learned Standing Counsel for the appellant, has submitted that the Tribunal has committed a serious error in holding that respondent No.1 is not a gratuitous passenger. He further submitted that the ambiguity in law regarding liability of payment of compensation by the Insurance Company in cases of gratuitous passengers travelling in goods vehicles has been settled once and for all by the Supreme Court in New India Assurance Company Limited Vs. Asha Rani and others 2003 ACJ 1 = 2001 ACJ 1847, which was subsequently reiterated in National Insurance Company Limited vs. Prema Devi and others 2008 ACJ 1149 . At the hearing, there is no representation for respondent Nos.1 and 2. As regards the finding of the Tribunal that respondent No.1 was travelling as a coolie, in my opinion, it militates against common sense apart from being oblivious of the specific admission made by PW.1. While it is impossible to comprehend that a six-year-old boy could be utilised as a coolie for doing labour work in connection with the transportation of goods, the law does not countenance a child of six years being used as a labourer. The Tribunal has, thus, fallen into a serious error in presuming that respondent No.1 was travelling as a coolie. Moreover, to the suggestion made on behalf of the appellant, PW.1, the father of respondent No.1, has deposed as under: “The petitioner was aged 6 years at the time of accident. He cannot attend to any coolie work.” The Tribunal has completely overlooked the above aspects in rendering a finding that respondent No.1 was a coolie. Moreover, to the suggestion made on behalf of the appellant, PW.1, the father of respondent No.1, has deposed as under: “The petitioner was aged 6 years at the time of accident. He cannot attend to any coolie work.” The Tribunal has completely overlooked the above aspects in rendering a finding that respondent No.1 was a coolie. Coming to the conclusion drawn by the Tribunal that, even if respondent No.1 is treated as a gratuitous passenger, the Insurance Company is liable to pay compensation in view of the judgment in Vijaya Kumar Bhavani Rao Kulkarni ( 1 supra), nodoubt, a two-Judge Bench of the Supreme Court in New India Assurance Company Limited vs. Satpal Singh 2000 ACJ 1 (SC) , held that gratuitous passengers are also entitled for compensation, but the correctness of the said judgment was doubted by the two-judge Bench of the Supreme Court in Asha Rani (2 supra) and the matter was referred to a larger Bench. When the award was passed by the Tribunal in the instant case, the larger Bench has not decided the said matter. That is the obvious reason why the Tribunal, in its award, has referred the fact of reference of the said issue to the larger Bench of the Supreme Court. However, a few months after disposal of the MVOP by the Tribunal, the larger Bench of the Supreme Court has answered the reference and overruled the judgment in Satpal Singh (4 supra). The larger Bench held that in respect of accidents, which have occurred prior to the amendment to Section 147 (1) of the Motor Vehicles Act, 1988 (for short ‘the Act’), by Act 54 of 1994, the Insurance Company was not liable to pay compensation in respect of the death of or injuries to the owner of the goods or his authorised representative travelling in the goods vehicle and that after the said amendment, they were entitled to receive compensation. But in case of gratuitous passengers, the Supreme Court held that as the provisions of the Act do not enjoin any statutory liability on the owner of the goods vehicle to get the same insured for any passenger travelling therein, the Insurance Company would not be liable to pay compensation. This view has been reiterated in several subsequent judgments. But in case of gratuitous passengers, the Supreme Court held that as the provisions of the Act do not enjoin any statutory liability on the owner of the goods vehicle to get the same insured for any passenger travelling therein, the Insurance Company would not be liable to pay compensation. This view has been reiterated in several subsequent judgments. One such judgment is Prema Devi (3 supra) wherein it is held that the legislative intent, as could be gathered from the change of definition of “goods vehicle” under the old Act to “goods carriage” in the new Act, is to prohibit a goods vehicle from carrying any passenger; that carrying of passengers in a goods carriage is not contemplated in the Act and that therefore, inevitable conclusion is that the provisions of the Act do not enjoin any statutory liability on the owner of the goods vehicle to get the same insured for any passenger travelling in goods carriage and the insurer would have no liability therefor. Having regard to the settled legal position as above, the impugned award of the Tribunal cannot be sustained and the same is accordingly set aside. This Court, while admitting this appeal on 19-02-2003, granted interim stay on condition of the appellant depositing half of the decretal amount together with interest and costs. This Court has, however, not permitted respondent No.1 to withdraw the compensation amount so deposited. As a result of the impugned award being set aside, the appellant is entitled to claim return of the compensation amount lying in deposit with the Tribunal. The Civil Miscellaneous Appeal is accordingly allowed. As a sequel, CMP No.3926 of 2003, filed by the appellant for interim relief, is disposed of as infructuous.