Partly allowed

Bajaj Allianz General Insurance Company Limited v. B. Yella Subbaiah and Another

Andhra Pradesh HC1 Feb 2024MACMA/1056/2016

Case brief

AI extract

What is this about?

The High Court allowed the appeal partially. It held that although the policy breach was established, the insurer must pay compensation determined by the Tribunal with a liberty to recover the amount from the vehicle owner, relying on Supreme Court precedents.

What did the court decide?

Directed the insurer to pay Rs. 47,000 as compensation with interest and recover the same from the vehicle owner.

Bajaj Allianz General Insurance Company Limited… — Motor Accident Claims | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH AMARAVATI

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FRIDAY ,THE SECOND DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU

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MACMA NO: 1056 OF 2016

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Appeal under Section 173 of M.V.Act, 1988 against the^{Orderanddecree} made in M.V. O.P. No. 1075 of 2007 Dated 08.07.2011 on the file of the Court of the IV Additional District Judge cum Motor Accidents Claims Tribunal, Kurnool

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Between:

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Bajaj Allianz General Insurance Company Limited, Rep., by its Regional Manager 6th Floor, Block-ll, White House, Begumpet, Hyderabad^-500016

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...APPELLANTS

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AND

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B. Yella Subbaiah S/o. B. Seshanna R/o. Orvakal Village and Mandal, Kurnool District.

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M. Nooruddin (Major), S/o. M. Gousemia Owner of^{theTractorandTrailer} R/o. Orvakal village, Kurnool District.

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...RESPONDENTS

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I.A. NO: 2 OF 2011(MACMAMP. NO: 4993 OF 2011)

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Petition under Section 151 CPC praying that in the^{circumstancesstated} in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in pursuance of the^orderand the decree dated 08.07.2011 passed in MVOP.No.1075/2007 on the file of the IV Additional District Judge cum Motor Accidents Claims Tribunal, Kurnool

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Counsel for the Appellants : SMT. T V SRI DEVI Counsel for the Respondent No.2: SRI. MURALI LINCOLN

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The Court made the following:

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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

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M.A.C.M.A. No.1056 OF 2016

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JUDGMENT:-

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Challenge in this M.A.C.M.A. is to the award, dated 08.07.2011 in M.V.O.P.1075 of 2007, on the file of^{IV-Additional} District Judge-cum-Motor Accidents Claims Tribunal, Kurnool, ("Tribunal" for short) where under, the Tribunal in a motor vehicle accidents claim, as against the original claim of Rs. 1,00,000/- for the injuries sustained by the claimant, granted compensation of Rs.47,000/- payable by the respondent^Nos.l and 2. 2. The parties to this M.A.C.M.A will hereinafter be referred to as described before the Tribunal for the sake of convenience. 3. The case of the claimant in the M.V.O.P.No.l075 of 2007 according to the petition averments, in brief, is that: (I) The claimant is aged about 24 years. He was hale and healthy at the time of the accident. He was working as a Hamali on the tractor and trailer bearing No.AP-21-V-2907^and AP-21-V-2908 (hereinafter will be referred to as "offending vehicle"). On 21.03.2006 in the afternoon, the petitioner along with few hamalies were proceeding in the offending vehicle as its hamalies from Orvakal village to Veldurthy for uploading the

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stones. The driver of the tractor and trailer i.e., the offending vehicle drove the same with high speed in a rash and negligent manner. At 4.00 pm, on Veldurthy-Ramallakota R&B road near Brahmagundam village, he lost control over the tractor and trailer as a result trailer turned turtle as such all the hamalies including the petitioner fell down along with trailer^as a result they received injuries and one of the hamalies died on the spot. The accident occurred was due to rash and negligent^actofthe driver of the said tractor and trailer. The respondent being the employer of the driver of the offending vehicle^andthe2 nd respondent being the insurer are responsible to pay the compensation. Though, the petitioner is entitled to claim an amount of Rs.1,40,000/-, he confined his claim only^toasumof Rs.1,00,000/-. Hence, the claim. 4. The 1^^ respondent (the owner of the tractor) filed his counter contending in substance that the 1st respondent validly insured the vehicle with 2nd respondent vide policy bearing No.OG-06-1801-5001-00000226 which is valid from 04.05.2005 to 03.05.2006. The road accident was occurred on 21.03.2006 during the tenure of the policy. If at all the petitioner^is entitled for any compensation, it should be against the 2^^ respondent alone. The amount claimed by the petitioner is excessive and exorbitant. Hence, the petition is to be dismissed.

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The 2"^ respondent/insurance company got filed a^counter resisting the claim of the petitioner and the brief^contentionof the 2'"'^ respondent is that the tractor and trailer^bearing No. AP-21-V-2907 and AP-21-V-2908 which involved in the^accident is a goods carriage vehicle and it is meant for the^carriageof goods only. At the time of accident, it was carrying^unauthorized passengers. The seating capacity of the vehicle is^{onlyfordriver.} At the time of accident, the vehicle was carrying more^thanone person. At the time of accident, the vehicle was used for the purpose of carrying stones and 2 nd respondent issued farmers package policy to the said crime vehicle which is meant for usage of agricultural purpose. However, contrary to^thepolicy, the respondent used the vehicle for commercial purpose^and the coolies are not supposed to travel on the goods in the vehicle, as there is no space for travelling coolies^{inthevehicle.} On account of breach of the provisions of the M.V.^{Act,the2^^^} respondent is not liable to pay any compensation. The^driverof the tractor and trailer did not possess any valid and effective driving license to drive the offending vehicle. Hence,^thepetition is liable to be dismissed. 6. On the basis of the above pleadings, the Tribunal settled the following issues for trial:

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(1) Whether the petitioner sustained injuries in a motor vehicle accident which was occurred on 21.03.2006 at about 4.00 pm on account of rash and negligent driving^of the driver of the tractor and trailer bearing No. AP-21-V-2907 and AP-21-V-2908, belongs to the 1 St respondent and insured with the 2"^ respondent? (2) Whether the petitioner is entitled to claim compensation, and if so to what amount and from which of the respondents? (3) To what relief?

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During the course of trial before the Tribunal, on behalf of the claimant, he examined himself as PWl and got marked Exs.Al to A4. On behalf of respondents, RWl and RW2 were examined and got marked Exhibits B1 to B5.

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The Tribunal on hearing both sides and on considering^the oral as well as documentary evidence, granted a sum of Rs.47,000/- towards compensation with proportionate costs and interest at 9% P.A. from the date of the petition till the date of realization payable by the respondent Nos.l and 2 jointly^and severally and further with a direction to the 2"^^ respondent to pay the compensation within a period of 30 days and^onsuch deposit, that the claimant is entitled to withdraw the entire amount.

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Felt aggrieved of the same. the unsuccessful 2'^'^ respondent filed the present M.A.C.M.A.

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Now, in deciding the M.A.C.M.A., the points that arise^for determination are as follows:

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(1) Whether the accident occurred was due to rash and negligent driving of the driver of tractor cum trailer bearing No. AP-21-V-2907 and AP-21-V-2908 and whether the petitioner received injuries in the said accident? (2) Whether the petitioner is entitled to claim compensation and if so, from which of the respondents? (3) Whether the award, dated 08.07.2011, is sustainable under law and facts and that there are any grounds to interfere with the same?

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Point Nos.l to 3:

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P.W.l before the Tribunal was no other than the petitioner who put forth the facts in tune with the pleadings^ofhisclaim petition. Through his examination Exs.Al to A4 were^marked. Ex.Al was the C.C. of FIR in Cr.No.28 of 2006 of Veldurthy Police Station. Ex.A2 was the C.C. of Wound Certificate. Ex.A3 was the C.C. of M.V.I report. Ex.A4 was the C.C. of Charge Sheet.

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The representative of the 2"^ respondent examined himself as RWl putting forth the facts in tune with the written statement and through his examination Exs.Bl and B2 were marked. Further, RW2 was examined, who was a Senior Assistant in R.T.O. Office and through his examination^Exs.B3to B5 were marked. Ex.Bl was the policy copy, Ex.B2 was the

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office copy of the notice issued to the respondent No.l along with Postal receipt and acknowledgement, Ex.B3 was the Authorization letter, Ex.B4 was the Form No.24B Register of Motor Vehicle (Tractor) and Ex.BS was the Form No.24 (Trailer). 13. T.V.Sridevi, learned counsel for the appellant, would contend that the main objection of the appellant is that the injured i.e., the claimant was no other than an unauthorized passenger and he claimed that he was a hamali. She would contend that the policy under Ex.Bl did not cover any unauthorized passengers and further it was only a farmer's package policy. There is no dispute that the seating capacity of the tractor is only one that is meant for driver. The petitioner claimed that he travelled on the top of stones in the trailer. Apart from this, the tractor cum trailer was supposed^tobeused only for agricultural operations in terms of Ex.Bl policy and contrary to that the vehicle was used for commercial purpose i.e., transportation of stones in the trailer. So, there was violation of policy on two counts. One is that, no premium was paid for allowing any person to travel in the trailer^or in the tractor, as it was only meant for the driver. Second^violationwas that the vehicle was not supposed to be used for any commercial purposes such as transportation of stones.^When all these contentions were raised, the Tribunal did not^consider it

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properly. However, in the set of circumstances, pay and recovery may be ordered. 14. Learned counsel for the appellant argued on 24.01.2024. As none represented for the respondents the matter is listed today for hearing the arguments of the contesting respondents. One counsel, purporting to be the counsel for the 2"^^ respondent in the morning time sought adjournment and this Court^declined to grant the same. Later, the matter is taken up in the first revised call and the second revised call and even after completion of weekly list work and even when the Court resumed at 2.15 pm., none represented. Hence the matter is being disposed of on merits. 15. Firstly, this Court would like to deal with, as to^whether the accident occurred was on account of rash and negligent^act of the driver of the tractor cum trailer. PWl was no other than the injured who claimed to have travelled in the trailer. During chief examination, he put forth the facts in tune with the pleadings. During the course of cross examination, he deposed that he gave a complaint to the police on the same day. He denied that he did not receive any injuries and obtained^afalse wound certificate. The very suggestion put forth before^PWlon behalf of the 2^^^^ respondent is nothing but baseless.

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A perusal of Ex.A2-certified copy of wound certificate goes to reveal that the petitioner received the fractures. There was no merit on the part of the 2 nd respondent to put forth the contention that the petitioner did not receive any injuries. Apart from this, there is no dispute that pertaining to the^accident in question, the police registered the FIR in Cr.No.28 of 2006 of Veldurthy Police Station and after due investigation filed a charge sheet in C.C.112 of 2006 on the file of Judicial I Class Magistrate, Dhone against the person by name Boya Sekhar^that he driven the tractor cum trailer in a rash and negligent^manner and caused death of one person and also caused injuries^tothe present petitioner. For obvious reasons, the respondentowner of the tractor did not choose to enter into the witness box to rebut the evidence. Though it is a fact that the claimant travelled in the trailer that itself is not sufficient to say that there was no rash and negligent act. When the driver of the tractor cum trailer allowed a person to travel on the trailer though it was not permissible, he ought to have taken proper care. Hence, the evidence of PWl remained unrebutted. There was nothing in the evidence of PWl to disbelieve his testimony. The evidence on record proves that the accident occurred was due to rash and negligent act of the driver of the tractor-cumtrailer. Ex.A2 reveals tfiat the petitioner received grievous

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injuries. Even the outcome of the investigation in Ex.A4 charge sheet also reveals that the petitioner sustained grievous injuries. Hence, the petitioner was able to prove before the^Tribunalthat he received injuries, which are grievous in nature,^onaccountof the rash and negligent act of the driver of the tractor-cumtrailer. 17. There is no dispute that the respondent was the owner of the vehicle. The vehicle in question was insured^withthe2 nd respondent under Ex.Bl policy. The contention of the 2 nd respondent is that there was violation of policy under two counts. One is that, Ex.Bl did not allow any person^totravel in the tractor-cum-trailer except the driver. Another violation is that, Ex.Bl policy was meant for farmer's package policy, as such, the vehicle should not have been used for any^commercial purpose. RWl, the representative of the 2 nd respondent. entered into the witness box and deposed the same. The claimant got cross examined RWl. He did not challenge the terms and conditions in Ex.Bl. RWl denied that the policy covers the risk of the labour and that there was no breach of any terms of policy. 18. As seen from Ex.Bl, it is pertaining to the offending vehicle and the policy runs as farmer's package. Though^there is no dispute by virtue of the^ evidence let in that the^trailercan

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also be used for commercial operations, but the fact^remained is that the respondent did not obtain any policy, so as^tocover the commercial operations. Ex.Bl was confined to only^farmer's package. So, the very usage of the trailer for transportation^of stones is nothing but commercial, which is contra to the conditions in Ex.Bl. Merely because the trailer can^beusedfor commercial operations, the respondent has no power^touse it for commercial operation, when Ex.Bl did not contemplate^the same. So, if the 1^^ respondent allowed the trailer for commercial operations, it will be at his own risk. Apart from this. there is no dispute that seating capacity of the tractor^whichwas pulling the trailer at the time of accident was only^onewhich is meant for driver. So, the claim of the claimant is that he travelled in the vehicle as a hamali. The court has to consider as to whether the act of the 1^^ respondent in allowing the petitioner to travel in the vehicle, though Ex.Bl did not permit the same is tenable or not. If Ex.Bl is taken into consideration carefully, absolutely, the claimant should not have^travelled in the vehicle. 19. Admittedly, the evidence on record reveals that there^was violation of policy conditions on two counts, one was^thatthe 1 St respondent did not pay any premium for travelling by any coolies in the trailer. In fact, trailer will not have any seats.

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Seating capacity would be only for the driver of the tractor which was only one. Second violation was that contrary^toEx.Bl conditions, vehicle was put for commercial use. 20. Learned counsel for the appellant would rely upon the judgment of Hon'ble Supreme Court in Shivraj Vs. Rajendra and another^ and contended that the Court has power^toorder pay and recovery. This Court has gone through the same.^The High Court concluded that the insurance company cannot be made liable to compensate the owner of the trailer. Appeal filed by the insurance company was allowed by the High Court. Appellant assailed the judgment of the High Court before^the Hon'ble Supreme Court. The Hon'ble Supreme Court observed that the appellant travelled in the tractor as a passenger^even though the tractor can accommodate only one person namely the driver. While holding so, the Hon'ble Supreme Court observed that the High Court ought to have directed the insurance company to pay the compensation amount to the claimant with a liberty to recover the same from the tractor owner, in view of the consistent view taken by the Hon'ble Supreme Court in several decisions. While holding so, the Hon'ble Supreme Court partly allowed the appeal to^theextent of directing the insurance company to pay the compensation

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AIR 2018 SC4252

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amount determined by the Tribunal which was affirmed^bythe High Court in the first place and to recover the same^fromthe owner of the offending vehicle. The facts in the aforesaid^case are fully applicable to the present case on hand. 21. Now, coming to the quantum of compensation, though^the petitioner claimed a sum of Rs.1,00,000/-, the Tribunal^tookinto consideration the six injuries sustained by the petitioner.^Outof six injuries received by the petitioner, injury Nos.4^and 5 are grievous and they are nothing but fractures and other^injuries are simple in nature. The Tribunal with due regard^ofthenature of the injuries according to Ex.A2 and A3, awarded a sum of Rs. 12,000/- towards simple injuries and Rs.30,000/towards fracture injuries totally Rs.42,000/-.The Tribunal awarded Rs.3,000/- towards pain and suffering. The Tribunal^declinedto grant any medical expenditure because the petitioner was given treatment in a Government Hospital. Tribunal awarded^asumof Rs.2,000/for the loss of earnings during the period of hospitalization. Thus, the Tribunal totally awarded a sum of Rs.47,000/- which is reasonable in the set of circumstances. 22. Insofar as the contention of the 2'^^ respondent that^there was violation of policy conditions is concerned, in^{theconsidered} view of this Court, the Tribunal did not appreciate the contentions in proper perspective. In the light of the findings

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/ /

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made by this Court as above, the petitioner is entitled to compensation from the respondent but a direction is to be given to the 2""' respondent to pay the compensation to the petitioner and to recover the same from the respondent. 23. In the result, the M.A.C.M.A is partly allowed only^tothe extent of modification of the award of the learned IV-Additional District Judge-cum-Motor Accidents Claims Tribunal, Kurnool dated 08.06.2011, by directing the 2nd respondent/appellant/insurer to pay the compensation to the petitioner i.e., a sum of Rs. 47,000/- with interest as awarded by the Tribunal and to recover the same from the l^*^ respondent-owner of the offending vehicle. Under the circumstances no order as to costs.

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Consequently, miscellaneous applications pending, if any,

shall stand closed.

//TRUE COPY//

SECTION OFFICER

To, 1. The IV Additional District Judge cum Motor Accidents^{ClaimsTribunal} Kurnool.

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One CC to Smt. T V Sri Devi Advocate [OPUC]

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One CC to Sri Murali Lincoln Advocate [OPUC]

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The Section Officer, VR Section, High Court of Andhra^Pradeshat Amaravathi.[OUT].

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THREE CD Copies

psr AL

HIGH COURT

DATED:02/02/2024

ORDER

MACMA.No.1056 of 2016

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PARTLY ALLOWING THE MACMA

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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FRIDAY ,THE SECOND DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU

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MACMA NO: 1056 OF 2016

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Between;

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Bajaj Allianz General Insurance Company Limited, Rep., by its Regional Manager 6th Floor, Block-ll, White House, Begumpet, Hyderabad^-500016

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...APPELLANTS

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AND

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B. Yella Subbaiah S/o. B. Seshanna R/o. Orvakal Village and Mandal, Kurnool District.

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2 M. Nooruddin (Major), S/o. M. Gousemia Owner of the^{TractorandTrailer} R/o. Orvakal village, Kurnool District.

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...RESPONDENTS

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Appeal under Section 173 of M.V.Act, 1988 against the^{Orderanddecree} made in M.V.O.P.No. 1075 of 2007 Dated 08.07.2011 on the file of the Court of the IV Additional District Judge cum Motor Accidents Claims Tribunal, Kurnool

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This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and Decree of the Lower Court and material papers in the Suit and upon hearing arguments of Smt T V Sri Devi, Advocate for the Appellant, and Sri Murali Lincoln, Advocate for Respondent No.2 and None Appeared for Respondent No.1.

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This Court Doth Order and Decree as follows:-

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That the MACMA be and hereby is Partly Allowed

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That the learned IV-Additional District Judge-cum-Motor^Accidents Claims Tribunal, Kurnool dated 08.07.2011 be and hereby is^modified

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That the 2 nd respondent/appellant/insurer be and hereby is directed to pay the compensation to the petitioner i.e., a sum of Rs. 47,000/- (Rupees Forty Seven thousand only) along with interest as awarded by the Tribunal and to recover the same from the 1®* respondent-owner of the offending vehicle.

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' 4. That there shall be no order as to costs in this MAGMA

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Sd/- G. HELA NAIDU ASSISTANT REGISTRAR

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//TRUE COPY//

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SECTION OFFICER

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To,
1. The IV Additional District Judge cum Motor Accidents Claims Tribunal,
Kurnool.
2. THREE CD Copies
psr
AL

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•• ♦

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"HjiGH COURT /• * DATED;02/02/2024

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DECREE

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MACMA.No.1056 of 2016

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PARTLY ALLOWING THE MACMA

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M- 1

Bajaj Allianz General Insurance Company Limited v. B. Yella Subbaiah and Another

Case brief

What is this about?

What did the court decide?

Bajaj Allianz General Insurance Company Limited v. B. Yella Subbaiah and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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