K. Krishnaveni vs. Sri K. Anwar Basha

HON'BLE SRI JUSTICE NINALA JAYASURYA M.A.C.M.A.No.748 of 2006

JUDGMENT:

Aggrieved by the order dated 02.01.2006 passed by the Chairman, Motor Accidents Claims Tribunal-cum-V Additional District Judge (FTC), Anantapur, (for short "the Claims Tribunal) in O.P.No.215 of 2000, the claimants in the said O.P. filed the present appeal.

2. The claimants filed the aforesaid original petition seeking a compensation of Rs.2,00,000/- for the death of one Subbanna in a motor vehicle accident that occurred on 14.07.1999. In the O.P., it is averred that the deceased was aged about 50 years and was doing cultivation and also seasonal business in groundnut. On 14.07.1999, when said Subbanna was returning in a lorry bearing registration No.AP 02T 1566 belonging to the 1st respondent with cement load, the driver of the lorry drove the same in a rash and negligent manner with high speed and dashed against another lorry bearing registration No.AP 03T 8551 near Vadiyampeta on Anantapur-Gooty National Highway, as a result of the same, said Subbanna succumbed to injuries, while he was being shifted to Government Hospital, Anantapur. The claimants, while claiming a compensation of Rs.2,00,000/-, examined P.Ws.1 to 3 and got marked Exs.A.1 to A.9.

3. The 1st respondent-owner of the vehicle was remained ex parte. The 2nd respondent-Insurance Company filed a counter resisting the

claim of the claimants inter alia contending that the deceased travelled in a goods vehicle, which is meant for carrying goods, as an unauthorized passenger and therefore, the Insurance Company is not liable to pay any compensation. The 2nd respondent-Insurance Company examined R.W.1 and got marked Exs.B.1 to B.7.

4. Though it was contended that the deceased was travelling in the lorry along with some cement bags as owner of the goods, the Claims Tribunal disbelieved the version and rejected the said plea. The Claims Tribunal categorically recorded a finding that the claimants failed to prove that the deceased travelled in the lorry for selling sweet oranges in Hyderabad and was returning in the same lorry as owner of cement bags. In the light of the said finding and referring to the judgments relied on by the 2nd respondent-Insurance Company and perusing Ex.B.2, the Claims Tribunal held as follows:

"In this case, policy issued by R.2 is an act policy and the vehicle is a goods vehicle with open body. In this regard, I rely on a decision reported in 2004 (5) ALT page 222 wherein our Hon'ble High Court held that when the policy issued is an act policy not covering the risk of passengers travelling in the goods vehicle, the owner alone is liable."

5. The Claims Tribunal insofar as the loss of dependency is concerned, taking the income of the deceased at Rs.1,500/- p.m. as the deceased was owning some agricultural lands, awarded a sum of Rs.1,56,000/- towards pecuniary loss and a further sum of Rs.10,000/- for

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loss of consortium and Rs.10,000/- towards loss of estate, respectively. In all, the Claims Tribunal awarded a sum of Rs.1,76,000/- as against the total claim of Rs.2,00,000/-. The Claims Tribunal, in view of the findings referred to supra, dismissed the O.P. against the 2nd respondent-Insurance Company by holding that the 1st respondent-owner alone is liable to pay the compensation. Aggrieved by the said order and decree, the present appeal came to be filed.

6. Mr. O. Uday Kumar, learned counsel for the appellants/claimants, inter alia submits that the order of the Claims Tribunal in dismissing the O.P. against the 2nd respondent-Insurance Company is not sustainable in law. He submits that the Claims Tribunal failed to appreciate the evidence in a proper perspective and grossly erred in coming to a conclusion that the deceased was travelling as an unauthorized passenger in the goods vehicle. He contends that since the deceased was travelling in the goods vehicle along with the goods as owner, the Insurance Company is liable to pay compensation in respect of the risk during the course of such travel. The learned counsel also submits that the amount as awarded by the Claims Tribunal is meager and in fact, the appellants/claimants are entitled to more compensation than the amount claimed in the original petition. The learned counsel further submits that the Claims Tribunal erred in completely exonerating the 2nd respondent-Insurance Company from payment of compensation and in any event, the principle of 'pay and recover' should have been applied. Accordingly,

the learned counsel urges that the appeal may be allowed by enhancing the compensation and fixing the liability on the Insurance Company.

7. On the other hand, Mr. M. Upendra Rao, learned counsel representing the 2nd respondent-Insurance Company, submits that the Claims Tribunal passed the order under challenge after due consideration of oral and documentary evidence and therefore, no interference is warranted as prayed for by the learned counsel for the appellants/claimants.

8. This Court has considered the rival contentions of the learned counsel and perused the material on record.

9. Though basing on the averments in the original petition, the learned counsel for the appellants submits that the deceased was travelling in the goods vehicle along with cement bags as owner of the same, no documentary evidence was adduced in support of the said contention. The Claims Tribunal under the said circumstances categorically held that the status of the deceased at the time of the accident is that of an unauthorized passenger and as per Ex.B.1-policy, which was issued for goods carrying vehicle, is an act policy and therefore, the Insurance Company cannot be made liable to pay any compensation. In the light of the findings of the Claims Tribunal based on material on record and thorough appreciation of evidence, the submission of the learned counsel for the appellants finding fault with the Tribunal in exonerating the Insurance Company, cannot be accepted. Be

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that as it may. Insofar as the submission of the learned counsel for the appellants/claimants seeking enhancement of compensation and application of the principle of 'pay and recover' is concerned, it may be noted that the appeal against the 1st respondent-owner of the vehicle was dismissed, by virtue of an order dated 25.04.2016. In such circumstances, no relief can be granted.

10. Accordingly, the M.A.C.M.A. is dismissed. No order as to costs.

11. Consequently, miscellaneous petitions, if any, pending in the appeal shall stand disposed of.

NINALA JAYASURYA, J

19th November, 2021 cbs

HON'BLE SRI JUSTICE NINALA JAYASURYA

M.A.C.M.A.No. 748 of 2006

19th November, 2021

NJS,J MACMA No.748 of 2006