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2011 DIGILAW 154 (AP)

New India Assurance v. Tottikolla Chukkamma

2011-02-24

G.BHAVANI PRASAD

body2011
JUDGMENT These three appeals arise out of the awards passed in pursuance of the common order passed in O.P.Nos.869 of 1997, 41 and 42 of 1998, on the file of the Motor Accidents Claims Tribunal-cum-District Judge, West Godavari District at Eluru, dated 22.04.2002. 2. The claims against the driver, owner and insurer of mini lorry No.AP 7V 1341 by the legal representatives/dependents of the three deceased for a compensation of Rs.1,70,200/-, Rs.2,00,000/- and Rs.2,00,000/-respectively were on the basis that the three deceased who were agriculturists, purchased fertilizers along with some others on 03.11.1997 at Eluru and engaged the mini lorry for carrying the goods to their village. The deceased also travelled along with their goods in the vehicle which fell into Tammileru canal at about 8.30 p.m. due to the rash and negligent driving by the first respondent. The load and the lorry fell on the deceased resulting in their death and hence, the claims. 3. While the driver and owner of the lorry did not file any written statements, the insurer contested the claims denying the manner of the accident or the ownership of the fertilizer bags with the deceased or the valid driving licence of the first respondent or compliance with the terms and conditions of the insurance policy or the existence of an insurance policy. The compensation claimed respectively was contested as excessive. 4. In all the three claim petitions, the Tribunal framed issues about the responsibility for the accident and the entitlement of the claimants to compensation. 5. The Tribunal examined P.Ws.1 and 2 in each claim and marked Exs.A-1 to A-4 and Ex.B-1 in each claim. 6. The Tribunal rendered the common order accepting the evidence of the eye witness examined as P.W.2 in all the three cases and also the contents of Ex.A-1-First Information Report, Ex.A-2-Accident Report, Ex.A-3-Post Mortem Report and Ex.A-4-Charge Sheet for concluding that the accident was due to the rash and negligent driving of the lorry in question. The Tribunal refuted the claim of the insurer that the deceased were gratuitous passengers based on the evidence of P.W.2 that the deceased purchased fertilizer bags, took the mini lorry on hire for Rs.1,200/-and were proceeding on the lorry with their bags. The Tribunal refuted the claim of the insurer that the deceased were gratuitous passengers based on the evidence of P.W.2 that the deceased purchased fertilizer bags, took the mini lorry on hire for Rs.1,200/-and were proceeding on the lorry with their bags. The non-examination of the driver or owner of the mini lorry and the absence of any contrary evidence for the third respondent were also noted and the Tribunal, referring to the provisions and precedents, opined the deceased to be either the owners of the fertilizer bags or the authorized representatives of the owners of the fertilizer bags, the liability in respect of whose death may be answered by the insurer. The Tribunal then proceeded to assess the quantum of compensation payable in each of the cases and granted a compensation of Rs.1,90,000/-in each of the cases with interest at 9% per annum from the date of the petition till the date of realization and proportionate costs. The Tribunal also gave directions about the apportionment of the compensation and disbursement of the compensation. 7. The insurer challenged the awards contending that the multiplier applied was wrong and that the deceased could not have been considered as the owners of the goods and should have been construed only as gratuitous passengers due to which it has no liability. 8. The appeal in C.M.A.No.2792 of 2002 was dismissed for default against the 4th respondent, owner of the lorry, by an order of this Court, dated 26.09.2008. 9. Heard Sri Kota Subba Rao, learned standing counsel for the appellant and Sri I. Gopal Reddy, learned counsel for the claimants in C.M.A.Nos.2792 and 2882 of 2002 and Sri R. Briz Mohan Singh, learned counsel for the claimants in C.M.A. No.3056 of 2002. 10. The findings of the Tribunal about the ownership of the mini lorry with the second respondent to the claims, the driver of the mini lorry at the relevant time being the first respondent to the claims and the valid and subsisting insurance of the mini lorry with the third respondent to the claims and the accident occurring due to the rash and negligent driving of the lorry by the first respondent are not challenged by either party and have become final. 11. 11. The assessment of compensation by the Tribunal in each of the three cases is based on an annual income of Rs.15,000/- per annum for the deceased and the same is the income adopted by the statute in its Second Schedule to the Motor Vehicles Act, 1988, even in respect of non-earning persons. There could not have been any lesser quantum that could have been taken as the probable income of the agriculturists and the deduction of 1/3rd towards the personal and living expenses of the deceased or the application of the multiplier to the persons aged 38 years and 40 years respectively at 16 need not be interfered with at this distance of time for the difference of one number in the multiplier between that adopted by the Tribunal and that laid down by the decision in SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER 2009 ACJ 1298 ,as adoption of a multiplier is only in approximation and not in exactitude. Similarly, grant of Rs.15,000/- each towards loss of consortium and loss of estate also needs no interference at this distance of time though it is Rs.10,000/-higher than what was laid down by SARLA VERMA’s case (supra 1)keeping in view the decrease in the value of rupee over the years which can be taken judicial notice of. The quantum of compensation has to be hence, not interfered with and similarly, there was no grievance to anybody about the sharing of the compensation by the dependents as directed by the Tribunal. 12. The only point that is left for adjudication in these appeals is about the liability of the appellant to compensate the dependents of the deceased in the three cases with reference to the capacity in which the deceased were travelling in the vehicle. The evidence of P.W.2 in the three cases was accepted as that of an eye witness, while P.W.1 in each of the cases was not a witness to the happenings. P.W.2 positively stated about the deceased being agriculturists, their having purchased fertilizer bags, their having engaged the mini lorry on hire for Rs.1,200/-and their travelling in the lorry along with the goods to their village. The acceptance of the version of P.W.2 by the Tribunal in the face of non-examination of the owner and driver and in the absence of any contrary evidence for the third respondent cannot be deviated under the circumstances. The acceptance of the version of P.W.2 by the Tribunal in the face of non-examination of the owner and driver and in the absence of any contrary evidence for the third respondent cannot be deviated under the circumstances. 13. While the finding of fact, therefore, is that the three deceased were travelling in the lorry as owners of the goods being carried therein, Ex.B-1-Insurance Policy is an act policy for the goods vehicle. While the finding of fact by the Tribunal cannot be disturbed in the absence of any contrary material, the legal consequences that flow from the same have to be considered. 14. In NATIONAL INSURANCE CO. LTD. VS. CHOLLETI BHARATAMMA AND OTHERS (2008) 1 Supreme Court Cases 423, the Apex Court was considering the liability of the insurance company to indemnify the owner of the vehicle in respect of the death of passengers travelling in goods carriage. Referring to Section 147 of the Motor Vehicles Act, 1988, before and after the amendment in 1994, the Apex Court noted that in NEW INDIA ASSURANCE CO. LTD. VS. SATPAL SINGH AIR 2000 SC 235 , the insurance liability was noted not to exclude gratuitous passengers in a vehicle. The Apex Court noted that later, the Apex Court categorized in RAMESH KUMAR VS. NATIONAL INSURANCE CO. LTD. (2001) 6 Supreme Court Cases 713, the cases arising under the Act into those under the old Act, under the new Act prior to 1994 and under the new Act after the amendment in 1994. While noting that the Motor Vehicles Act, 1988, does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably, the insurance policy covers the death or injuries either to the owner of the goods or his authorized representative. The Apex Court referred to NEW INDIA ASSURANCE CO. LTD. VS. ASHA RANI AIR 2003 SC 607 ,wherein it was concluded that the provisions of the Motor Vehicles Act, 1988, do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle due to which the insurer would not be liable. Therefore, the Apex Court observed that the effect of 1994 Amendment was considered in NATIONAL INSURANCE CO. LTD. VS. Therefore, the Apex Court observed that the effect of 1994 Amendment was considered in NATIONAL INSURANCE CO. LTD. VS. BALJIT KAUR 2004 ACJ 428 (SC), wherein injury to any person was considered as meaning only a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. The same principle was noted to have been followed in the later decisions in NATIONAL INSURANCE CO. LTD. VS. BOMMITHI SUBBAYAMMA (2005) 12 SCC 243 and NEW INDIA ASSURANCE CO. LTD. VS. VEDAWATI AND OTHERS 2007 ACJ 1043 . On those principles, the Apex Court absolved the insurer from liability in the cases before it in respect of unauthorized passengers or gratuitous passengers and in Civil Appeal Nos.7241 to 7243 of 2003, the Apex Court observed that the owner of the goods means only the person who travels in the cabin of the vehicle. The Apex Court observed that travelling with goods itself does not entitle any one to protection under Section 147 of the Motor Vehicles Act, 1988. In Civil Appeal No.7248 of 2003, the Apex Court upheld the observation of the Motor Accidents Claims Tribunal that the liability to cover the risk of the owner of the goods is restricted only to one person as the owner of the goods. In that case, the premium was also paid only for one person. In Civil Appeal Nos.7288 to 7290 of 2003 also, a similar conclusion was drawn by the Apex Court. 15. As opposed to this decision of the Apex Court, in ORIENTAL INSURANCE CO. LTD. VS. PUSHPA AND OTHERS 2005 ACJ 578 , a Division Bench of Allahabad High Court considered that the scheme underlying the provisions of the Motor Vehicles Act, 1988, does not prohibit hiring a goods vehicle by several owners for different goods exclusively belonging to them. In view of Section 13 of the General Clauses Act, 1897, the words in the singular used as ‘owner of the goods or his authorized representative’ in Section 147 of the Motor Vehicles Act, 1988, as amended in 1994 shall include the plural. 16. A learned Judge of this Court also held in UNITED INDIA INSURANCE CO. LTD., KURNOOL VS. In view of Section 13 of the General Clauses Act, 1897, the words in the singular used as ‘owner of the goods or his authorized representative’ in Section 147 of the Motor Vehicles Act, 1988, as amended in 1994 shall include the plural. 16. A learned Judge of this Court also held in UNITED INDIA INSURANCE CO. LTD., KURNOOL VS. CHAKALI JAKKALU AND ANOTHER 2008 (1) ALD 190 similarly that there can be different owners and different set of goods with reference to Section 147 read with Section 13 of the General Clauses Act, 1897, and all such owners can lay a claim against the insurance company. However, the decision did not elaborate the terms and conditions of the insurance policy under consideration in that decision. 17. In ORIENTAL INSURANCE COMPANY LIMITED VS. YARAVA LAKSHMI DEVI AND OTHERS 2009 (4) ALT 151 ,another learned Judge of this Court was considering the liability of the insurer in respect of passengers travelling in goods vehicle along with their goods after the 1994 Amendment of the Motor Vehicles Act, 1988. The learned Judge noted the three categories of cases and observed that though the owner of the goods travelling in a goods vehicle is not covered under the insurance policy, after 14.11.1994 subsequent to the amendment of Section 147 of the Motor Vehicles Act, 1988, even the owner of the goods travelling in a goods vehicle is considered as a third party covered under the insurance policy and passengers travelling in the goods vehicle as owners of the goods are covered under the insurance policy. In this case also, the question of payment of premium and the terms and conditions of the insurance policy were not detailed. 18. While the applicability of Section 13 of the General Clauses Act, 1897, to the words ‘owner of the goods’ or ‘the authorized representative’ used in Section 147 of the Motor Vehicles Act, 1988, was obviously the question for consideration in the three decisions relied on by Sri I. Gopal Reddy, learned counsel for the claimants, the question herein involves a different consideration and, therefore, the said precedents have to be distinguished. In the present case, Ex.B-1-Insurance Policy is in respect of the goods carrying vehicle and it is an Act policy in respect of the commercial vehicle. The premium was not shown to have been paid in respect of any particular number of persons. In the present case, Ex.B-1-Insurance Policy is in respect of the goods carrying vehicle and it is an Act policy in respect of the commercial vehicle. The premium was not shown to have been paid in respect of any particular number of persons. The terms and conditions of the liability to third parties mentioned by the insurance policy covered, the driver driving the vehicle with the permission of the owner and there was no specification about the coverage of liability of any other persons. Though all the three deceased herein were carrying their goods in the vehicle at the relevant time and were travelling in the same vehicle along with the goods and though the goods are not capable of being subjected to any restricted interpretation as personal luggage, the admitted facts show including Ex.A-1-First Information Report and Ex.A-4-Charge Sheet that they were sitting on the fertilizer bags in the vehicle and not in the cabin of the vehicle. Irrespective of the singularity or plurality of the expression in Section 147 of the Motor Vehicles Act, 1988, the observation of the Apex Court in BHARATAMMA’s case (supra 2)that it is now well settled that ‘the owner of the goods’ means only the person who travels in the cabin of the vehicle, may stand the way of upholding the claim of the claimants herein against the insurer and the Apex Court also further observed that travelling with the goods itself does not entitle any one to protection under Section 147 of the Motor Vehicles Act, 1988. This factor, apart from the Apex Court agreeing with the Tribunal in one case that the risk was restricted to only one person as the owner of the goods and the further observation in the same case that the premium was paid only for one person also, may militate against the claims herein. In any view, as the deceased were sitting on the fertilizer bags and not in the cabin, in the light of the principle laid down by the Apex Court, they do not appear to be entitled to the protection under Section 147 of the Motor Vehicles Act, 1988. If so, the insurance company would be absolved from the liability to compensation in all the three cases. 19. If so, the insurance company would be absolved from the liability to compensation in all the three cases. 19. However, by virtue of the interim orders of this Court, the insurer deposited halves of the decreetal amounts with interest and costs including the amount deposited under Section 173 of the Motor Vehicles Act, 1988, and the claimants were permitted to withdraw their respective shares without furnishing any security and it is stated that the condition was complied with and the withdrawal was also made. To that extent, the insurer should be permitted to realize the same from the owner of the vehicle without the necessity of being referred to any separate suit or other legal proceedings. 20. The factual conclusions stated above are to the effect that only one owner of the goods appears to have been covered by Ex.B-1-Insurance Policy and Sri Kota Subba Rao, learned standing counsel for the insurer had not seriously disputed the liability of the insurer to compensate the dependents of one owner of the goods in whatever manner the provisions of the Motor Vehicles Act, 1988, and the terms and conditions of the insurance policy are interpreted, may be even irrespective of the place where such owner of the goods is sitting in the vehicle. Even in Civil Appeal Nos.7241 to 7243 of 2003, wherein the Apex Court made an observation about the owner of the goods being the person travelling in the cabin that was with reference to the absence of proof of the ownership of the goods being carried in the vehicle with the deceased in question. If the principle of NATIONAL INSURANCE CO. LTD. VS. ANJANA SHYAM AIR 2007 SC 2870 were to be applied to the facts of the present case, the award in one case should be directed to be fully satisfied by the insurer by depositing the balance of compensation with interest and costs as directed by the Tribunal to the credit of the matter and permitting distribution of the said amount deposited between the claimants in these three cases equally. The claimants will always have the liberty of recovering the balance of compensation due to them in each of these cases from the owner and driver of the offending vehicle whose liability in tort cannot be in doubt and the liability of whom as fixed by the Tribunal was not challenged by them. The claimants will always have the liberty of recovering the balance of compensation due to them in each of these cases from the owner and driver of the offending vehicle whose liability in tort cannot be in doubt and the liability of whom as fixed by the Tribunal was not challenged by them. These appeals have to be ordered accordingly. Thus, the insurer will have to answer the highest one of the claims in full, while not being liable to answer the other two claims. 21. In the result, the award in O.P.No.869 of 1997, on the file of the Motor Accidents Claims Tribunal-cum-District Judge, West Godavari at Eluru, dated 22.04.2002, is confirmed against the appellant/insurer and the awards in O.P.Nos.41 and 42 of 1998 before the said Tribunal in pursuance of the common order are set aside against the appellant/insurer. 22. Accordingly, C.M.A.No.3056 of 2002 is dismissed without costs and C.M.A.Nos.2792 and 2882 of 2002 are allowed without costs. The amounts already deposited by the insurer to the credit of O.P.Nos.41 and 42 of 1998 and permitted to be withdrawn by the claimants can be recovered by the insurer/appellant from the owner of the vehicle without the necessity of being referred to any separate suit and other legal proceedings. The insurer shall deposit to the credit of O.P.No.869 of 1997 the balance of compensation awarded by the impugned award along with interest and costs upto date and on such deposit, the claimants in O.P.Nos.869 of 1997, 41 and 42 of 1998 are each entitled to receive the same at 1/3rd of such amount deposited, while the inter se apportionment of such 1/3rd amounts in each shall be in the same proportion as ordered by the impugned awards. This is without prejudice to the right of the claimants in each case to recover the entire compensation along with interest and costs awarded by each of the impugned awards from the driver and owner of the vehicle jointly and severally.