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2023 DIGILAW 391 (AP)

Boya Devendrappa v. S. Farida Begum

2023-02-15

T.MALLIKARJUNA RAO

body2023
JUDGMENT : 1. Aggrieved by the order 16.07.2010in MVOP No.336 of 2002 passed by the Chairman, Motor Accidents Claims Tribunal-cum –IV Additional District Judge, Anantapur (for short 'the Tribunal'), the claimant has preferred this appeal seeking enhancement of compensation. 2. The parties will be referred to as arrayed in the MVOP for convenience. 3. The claimant has filed a petition under sections 140 and 166 of the Motor Vehicles Act, claiming compensation of Rs.30,000/-on account of the injuries sustained by him in a motor vehicle accident that occurred on 24.05.2000. 4. The claimant’s case is that on 24.05.2000 at about 3.20 AM, he boarded the bus bearing No.MEK 9909 (hereinafter refer to as ‘the offending vehicle’) to go to his village. When the offending bus reached Aparna Cloth Centre, its driver drove the vehicle in a rash and negligent manner and lost control over the same and caused the accident. As a result, he received grievous injuries and became permanently disabled. 5. The 1st respondent, who is the owner of the bus, remained exparte. 6. The 2nd respondent filed written statement, contended that there is no negligence on the part of the offending vehicle at the time of accident. The accident was the result of the claimant himself who was knowingly boarded on the top of the bus by stretching his legs outside and the bus was over loaded with 105 passengers. There was violation of the conditions of the policy. The respondent denied the earnings of the claimant so also the medical expenses incurred by him. The liability is strictly subjected to the terms and conditions of the policy. 7. Based on the pleadings, the Tribunal has formulated appropriate issues. On behalf of the claimant, PWs.1 and 2 got examined and marked Exs.A.1 to A.4 & Ex.X1. On behalf of the respondents, no oral evidence was adduced, but got marked Ex.B1 policy copy. 8. After evaluating the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle’s driver, and granted compensation of Rs.27,000/-with interest @ 7.5 % per annum from the date of the petition till the date of realization against the 1st respondent and the petition against 2nd respondent is dismissed without costs. 9. Heard both the learned Counsel. Perused the record. 10. 9. Heard both the learned Counsel. Perused the record. 10. The learned Counsel for the appellant/claimant has contended that the tribunal erred in fixing the liability against the 1st respondent only and dismissed the petition against the 2nd respondent even though the policy was in force as on the date of accident; the tribunal ought to have granted interest from 10.09.2002 to 17.05.2004. 11. Learned Counsel for the respondents supported the Tribunal’s findings and observations. 12. While answering the issue No.1, the tribunal observed that the claimant had sustained injuries only due to rash and negligent driving of the offending bus belonging to the 1st respondent. The tribunal while answering the issue No.2 observed that the claimant is entitled to an amount of Rs.27,000/-and 1st respondent is liable to pay the compensation and 2nd respondent is not liable to pay any compensation. The finding of the tribunal that the accident occurred due to rash and negligent driving of the offending bus driver is not challenged by the respondents in O.P by filing appeal or cross objections. The said finding has attained finality. It is not in dispute that as on the date of accident, Ex.B1 policy was in force. 13. Now the point for determination is: Whether the tribunal erred in not fastening the liability on the insurance company? POINT: 14. It is the contention of the insurance company that there is the violation of the policy and therefore, the insurance company cannot be held liable to pay the compensation. The evidence on record shows that there were about 70 passengers travelling in the offending bus and the capacity of the bus is only 53 (52+1) as per the policy under Ex.B1. The tribunal observed that without hesitation, it can be said that the owner is not permitted to take more passengers than its permitted capacity, to make insurance company liable for accident. The tribunal observed that there is a clear violation of policy and therefore, the insurance company cannot be held liable to pay compensation. The tribunal has also given finding that the claimant was permitted to travel on the bus, but he was permitted to sit on the top of the bus by conductor and driver. Therefore, the owner is vicariously liable to pay the compensation amount. 15. The claimant has taken a plea questioning the quantum of compensation amount. The tribunal has also given finding that the claimant was permitted to travel on the bus, but he was permitted to sit on the top of the bus by conductor and driver. Therefore, the owner is vicariously liable to pay the compensation amount. 15. The claimant has taken a plea questioning the quantum of compensation amount. The evidence on record shows that the PW.1 sustained two injuries. He also relied on Ex.A2-wound certificate. The claimant got examined PW.2-T.Murali Krishna. PW.2 deposed that he found two injuries, one is on the left and other is on the forehead. As rightly observed by the tribunal, the claimant has not filed X-ray film. However, the tribunal accepted the evidence of PW.2 that there is disfiguration and loss of muscle conture on the left hand and fracture in the left leg. By accepting the said evidence of PW.2, the tribunal held that the injury No.1 is grievous in nature and it awarded an amount of Rs.10,000/-towards grievous injury and it also awarded an amount of Rs.5,000/-towards simple injury. The tribunal awarded an amount of Rs.5,000/-towards medical expenses and also awarded an amount of Rs.5,000/-as there is a disfiguration to the left leg and also awarded an amount of Rs.2,000/-towards transport charges. Altogether, the tribunal awarded an amount of Rs.27,000/-. Considering the evidence on record, this Court views that the tribunal awarded just and reasonable compensation to the claimant. 16. This Court is also views that passengers are not supposed to be allowed to travel on the roof of the bus. When the driver found passengers on the roof of the bus, he ought not to have driven the vehicle until passengers got down. In such circumstances, the tribunal was justified in holding that driver was negligent in driving the offending bus, which resulted the grievous injury to the PW.1. As already noted, the said finding of the tribunal is not questioned. 17. The tribunal has also given a finding that as the claimant was permitted to travel on the top of the offending bus by the conductor and driver, the owner is also vicariously liable. However, this Court views that the insurance company should indemnify the owner of the offending bus. As per Ex.B1 policy, an amount of Rs.6,336/-is collected towards legal liability to passengers. 18. In the case between New India Assurance Co. However, this Court views that the insurance company should indemnify the owner of the offending bus. As per Ex.B1 policy, an amount of Rs.6,336/-is collected towards legal liability to passengers. 18. In the case between New India Assurance Co. Ltd. V. Hasina Begum and others, 2010 SCC Online All 1196, the Allahabad High Court held that: The factum of travelling of the deceased by the bus is not denied by the Insurance Company but the claim of the defendants is completely being denied by the appellant Insurance only on the ground that he was travelling on the roof of the bus. The Apex Court in Amalendu Sahoo v. Oriental Insurance Co. Ltd., ALR 2010 (79) page-749, has held that Insurance Company cannot repudiate the claim in toto even if any term of policy are violated. In this view of the law settled by the Apex Court even if the deceased was not travelling in the bus, it cannot be construed that the terms and conditions of the Insurance policy has been violated, which has not been placed before the Court to establish that the travelling on the roof of the vehicle by a passenger is fatal to his claim. The deceased was travelling on the roof of the bus, hence he was a valid passenger. The question of bonafide passenger was not raised and even otherwise it could not be proved that he was not holding a valid ticket. 19. In Giriraj Prasad Agrawal And Ors. V Parwati Devi And Ors., 2005 (2) TN MAC 65 (FB), the high court of Jharkhand held that: Wherein, it is a case of the deceased along with other persons were traveling by Bus on the relevant date of accident. The deceased was sitting on the roof of the Bus. When the Bus reached near Jaruadih More, several mango trees were spread towards road and the deceased who was on the roof of the Bus, sustained grievous head injury. The deceased was taken to hospital and subsequently he died. In another case, the deceased was traveling on the roof of the Bus. Because of rash and negligent driving, the deceased fell down form the bus and succumbed to injuries. ……. The deceased was taken to hospital and subsequently he died. In another case, the deceased was traveling on the roof of the Bus. Because of rash and negligent driving, the deceased fell down form the bus and succumbed to injuries. ……. The High Court of Jharkhand relied on the decision of a bench of the Punjab and Haryana High Court, in a case reported in 1989 (2) TAC 485 has taken a similar view and held that in case of a person traveling on the roof of the bus and dying in an accident, the insured committed no breach of any specified condition of policy. Insurance Company cannot take a defence which does not fall within the purview of Section 149(2) of the said Act. …….. The High Court of Jharkhand further relied on the decision of State of Maharashtra and Ors. V. Nanded-Parbhani Z.L.B.MV. Operator Sangh, AIR 2002 SC 725, a similar question with regard to liability of the Insurance Company in case where vehicle was found carrying more passengers than the number of passengers prescribed in the permit came for consideration before the Supreme Court and their Lordships observed: "According to the learned counsel, appearing for the State of Maharashtra, the expression "purpose for which the vehicle may be used" could be construed to mean that when the vehicle is found to be carrying passengers more than the number prescribed in the permit, the purpose of user is otherwise. We are unable to accede to this contention as in our opinion, the purpose would only refer to a contingency when a vehicle having a permit of stage carriage is used as a contract carriage or vice versa or where a vehicle having a permit for stage carriage or contract carriage is used as a goods vehicle and vice versa. But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted. If the legislature really wanted to confer power of detention on the police officer for violation of any condition of the permit, then there would not have been the necessity of adding the expression "relating to the route on which or the area in which or the purpose for which the vehicle may be used." The user of the aforesaid expression cannot be ignored nor can it be said to be a tautology. We have also seen the form of permit (From P.Co.T.), meant in respect of a tourist vehicle, which is issued under Rule 72(1)(IX) and Rule 74(6) of the Maharashtra Motor Vehicles Rules, 1989. On seeing the different columns, we are unable to accede to the contention of the learned counsel appearing for the State of Maharashtra, that carrying passengers beyond the number mentioned in Column 5, indicating the seating capacity, would be a violation of the conditions of permit relating either the route or the area or the purpose for which the permit is granted. In this view of the matter, we see no infirmity with the conclusion arrived at by the High Court in the impugned judgment and the detention of the vehicles has rightly been held to be unauthorized and consequently, the compensation awarded cannot be said to be without jurisdiction. This appeal, therefore, fails and is dismissed but in the circumstances, there will be no order as to costs." ….. After giving my anxious consideration on the provisions of law and ratio decided by the Supreme Court in the decisions referred to hereinabove, I come to the following conclusion: (i) Carrying passengers more than covered by the Insurance Policy though amounts to committing breach of terms of policy, the Insurance Company cannot be absolved from its liability to pay compensation with respect to the persons exceeding the number covered by the policy. In case Insurance Company is permitted to raise defence of limited liability on the basis of terms of policy, object of Section 147 would stand frustrated. Even otherwise, alleged breach of terms of policy by the insured may be an offence under the provisions of the Act, but surly that does not fall under Section 149(2)(a) of the Act. (ii) The insurer can avoid its liability only if the conditions specified in Section 149(2) are satisfied, and not otherwise. The statute recognizes no other condition for an insurer to escape its liability except those given in Section 149(2) whatever the terms and conditions between the insurer and the insured may be. The terms of contract between the insured and the insurer determining their rights and liabilities towards each other are not and should not be confused with the statutory liability of the insurer for the third party risk. The terms of contract between the insured and the insurer determining their rights and liabilities towards each other are not and should not be confused with the statutory liability of the insurer for the third party risk. If there is a breach of contract on the part of the insured, the insurer may proceed against the insured. As far as third party risk is concerned, the liabilities being statutory, it cannot be overridden by terms of the contract of insurance between the parties. 20. After giving my anxious consideration on the provisions of law and ratio decided by the Apex Court in the aforesaid Judgments, this Court views that, the respondent-Insurance Company is liable to pay the compensation. 21. In the result, the appeal is allowed in part, by setting aside the order dated 16.07.2010 in M.V.O.P No.336 of 2002 passed by the Chairman, Motor Accidents Claims Tribunal-cum –IV Additional District Judge, Anantapur, and the insurance company is liable to pay the compensation assessed by the tribunal to the claimant. There shall be no order as to costs. 22. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.