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2020 DIGILAW 174 (AP)

National Insurance Co Ltd v. Biradala Pramila

2020-03-02

M.VENKATA RAMANA

body2020
JUDGMENT: The insurer is the appellant. The respondents 1 to 3 are the legal heirs of the deceased Sri Biradala Venkata Rao. The first respondent is the mother and whereas, respondents 2 and 3 are his sisters. 2. Sri Biradala Venkata Rao, met with an accident on 02.10.2004 and in order to avert a pig crossing the road when he drove the offending auto rickshaw, it crashed into a stationary lorry. He suffered multiple injuries and died instantaneously. 3. The case of the respondents to lay the claim for compensation in the Tribunal was that Sri Biradala Venkata Rao, was earning Rs.6,000/-per month and on whom they were dependant. Thus stating, they claimed a total compensation of Rs.3,50,000/-. The appellant resisted the claim of the respondents mainly on the ground that Sri Biradala Venkata Rao, was the owner-cum-driver of the offending vehicle and therefore, the claim petition itself could not been maintained. It also disputed the earning capacity as well as the claim of the respondents as dependants, while calling the claim, excessive. 4. The Tribunal settled the following issues for consideration: “1.Whether the accident occurred out of the use of the motor vehicle bearing Registration No.AP 16 DJ/TR/7040 of the deceased? 2. Whether the petitioners are entitled to compensation? If so, to what amount and from which of the respondents? 3. To what relief?” 5. Basing on the evidence of the first respondent, Ex.A1 to Ex.A3 and considering the evidence adduced by the appellant through one of it’s officer, viz., R.W.1 as well as Ex.B1 copy of Policy of Insurance, the Tribunal rejecting the defence of the appellant, awarded a compensation of Rs.1,32,000/-with proportionate costs and future interest at 7.5% per annum thereon against the respondents, subject to directions relating to apportionment. 6. It is against this award, the present appeal is preferred. 7. Learned counsel for the appellant contended that Sri Biradala Venkata Rao, being the owner and driver of the offending auto rickshaw was not a thirty party to the contract of insurance and that the Tribunal took into consideration the premium paid towards personal accident coverage. Therefore, its liability could not have been fastened. 8. None represented the respondents. The matter is being now disposed of on the material available. 9. Now, the following points arise for determination: Whether the accident occurred on account of rash and negligence of the offending auto rickshaw? Therefore, its liability could not have been fastened. 8. None represented the respondents. The matter is being now disposed of on the material available. 9. Now, the following points arise for determination: Whether the accident occurred on account of rash and negligence of the offending auto rickshaw? Whether respondents 1 to 3 are entitled for compensation and if the appellant stands exonerated in view of nature of Ex.P1 policy, there for? To what relief? 10. POINTS No.1 & 2 : The Tribunal took into consideration the oral testimony of P.W.1 and while relying on the records relating to investigation by the police into this alleged accident, viz., Ex.A1 to Ex.A3, held that the offending vehicle alone was responsible for the alleged accident. However, the fact that the deceased was the driver of this vehicle, was not considered properly, which cannot be lost sight of. There is a clear finding recorded by the Tribunal that the inquest report (Ex.A3) itself disclose that the accident occurred due to the fault of the deceased himself as the driver of the auto rickshaw. 11. In such an event, it cannot be stated that the respondents could take advantage of this situation. May be that the accident occurred in the manner projected by the respondents. The claim made by the respondents is not against any other vehicle attributing rash and negligence as third parties. It is their admitted case that the deceased himself drove the offending auto rickshaw at the time of the alleged accident and crashed into a stationary lorry, when he tried to avoid a pig crossing the road. This undisputed situation alone is sufficient to reject the claim of the respondents. Though a claim could be presented in terms of Section 166 of M.V. Act and Section 168 of M.V. Act on account of use of a motor vehicle, it is also necessary that there should be proof that the accident occurred on account of rash and negligent driving of the vehicle concerned particularly when it is a claim by a third party. Similar are not the circumstances in this case. In such situation, liability cannot be fastened in terms of Section 147 of Motor Vehicles Act. 12. It is not in dispute that Ex.B1 policy not only covers third party risks but also personal accident coverage of owner-cum-driver. Similar are not the circumstances in this case. In such situation, liability cannot be fastened in terms of Section 147 of Motor Vehicles Act. 12. It is not in dispute that Ex.B1 policy not only covers third party risks but also personal accident coverage of owner-cum-driver. In the course of hearing this appeal, learned counsel for the insurer has brought to the notice of this Court that a sum of Rs.2,00,000/-has been paid to the respondents under Ex.B1 policy on account of such stipulation covering personal accident by the owner-cum-driver, viz., Sri Biradala Venkata Rao. 13. The Tribunal took into consideration that additional premium was collected by the appellant covering personal accident liability from Biradala Venkata Rao, who was then the owner and driver of the offending auto rickshaw. Thus stating, it was held that the liability of the appellant stands. 14. Personal accident coverage is different from the statutory liability contemplated under Section 147 of M.V.Act. It reflects a specific contract between the insurer and the insured in the nature of a fidelity arrangement. Therefore, it cannot be taken into consideration for the purpose of application under Section 147 of M.V. Act. 15. Therefore, finding that the insurer cannot be made liable towards the claim of the respondents, this appeal has to be allowed. Thus, these two points are answered. 16. POINT No.3: In view of findings on points 1 and 2, this appeal has to be allowed. 17. In the result, this appeal is allowed, setting aside the award of the Tribunal. Interim order granted earlier, stands vacated. All pending petitions, stand closed.