L and T General Insurance Co. Ltd. Vs Thupakula @ Karnam Manjula

L AND T GENERAL INSURANCE CO LTD, now known as HDFC ERGO General Insurance Co. Ltd., Represented by its Asst. Vice President office at 6-3-34611, II Floor, Banjara Hills, Opposite Jalagam Vengal Rao Park, Hyderabad.

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...Petitioner

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AND

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THUPAKULA KARNAM MANJULA, W/o late Thupakula @ Karnam Polaiah, aged about 25 years, House wife.

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Thupakula Karnam Venkata Bhavya, D/o late Thupakula @ Kamam Polaiah, aged about 6 years,

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Thupakula Karnam Venkata Karthik, S/o late Thupakula @ Karnam Polaiah, Minor.

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Thupakula Karnam Mariyamma, W/o Thupakula @ Karnam Venkataramnaiah, aged about 45 years,

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Thupakula Karnam Venkataramnaiah, S/o Krishniah, aged about 50 years, Respondent No.2 and 3 being minors Rep. by Their mother /natural guardian Respondent No.1 All are R/o Gummalla Dibba near Tank Bund Kai, S.P.S.R.Nellore District.

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Arya Chinna Pullaiah, S/o Somaiah, Hindu, age not known, Owner of Tractor and Trailer. R/o H.No.24/2/196, Ram Nagar, Nellore.

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2

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Thupakula Venkata Ramanaiah, s/o Venkata Ramanaiah, Hindu, aged about 24 years, Driver of Tractor and Trailer, Resident of Gummalla Dibba Village, Kovvr Mandal, SPSR Nellore District.

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...Respondents

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Appeal filed under Order 41 of CPC praying that the High Court may be pleased to allow the appeal by setting aside the Order and Decree dated 01-10-2018 passed in M.V.O.P.No.244 OF 2015 on the file of the Court of Chairman, V Addl. Motor Accidents Claims Tribunal - Cum - SPSR Nellore District at Nellore and to pass such other orders.

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IA NO: 1 OF 2019

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone delay of 97 days in Re-presenting the appeal MACMA SR.No.76709/2018.

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IA NO: 2 OF 2019

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay the operation of Order and Decree dated 01.10.2018 passed in OP.No.244 of 2015 on the file of the Court of the Chairman, V Addl Motor Accidents Claims Tribunal at SPSR Nellore District.

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Counsel for the Petitioner: GUDI SRINIVASU

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Counsel for the Respondents: SIVAPRASAD REDDY VENATI The Court made the following:

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THE HONOURABLE SRI JUSTICE T.C.D. SEKHAR

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M.A.C.M.A.No.300 of 2019

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ORDER:

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The present appeal is preferred against order dated 01.10.2018 in M.V.O.P.No.244 of 2015 on the file of Chairman, V Additional Motor Accidents Claims Tribunal-cum-IV Additional Motor Accidents Claims Tribunal, Sri Potti Sri Ramulu Nellore District at Nellore by L&T General Insurance Company Limited, Nellore.

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For the sake of convenience the parties are referred to as they were referred before the Tribunal.

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The petitioners filed claim petition under Section 166 of M.V. Act read with Rules made there under claiming compensation of Rs.15,00,000/- on account of the death of one Thupakula alias Karnam Polaiah who died in the accident that was occurred on 29.03.2014 in which the offending Tractor and Trailer bearing Registration Nos.AP26-TA-3813 and AP26-TA-3814 respectively were involved.

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It is the case of the petitioners that the deceased was cooly who was engaged for loading and unloading of bricks in the offending Tractor and Trailer. After loading the bricks in the said offending Tractor, the deceased got into the offending Tractor so as to unload the bricks. When the offending Tractor reached Golagamudi cross at about 10.30 am, the driver of the offending Tractor so as to avoid cattle which came across, driven the offending Tractor in rash and

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negligent manner, thereby the hook of the offending Tractor and Trailer got broken and in the said process the deceased fell from the offending Tractor-Trailer and sustained bleeding injuries. He was immediately taken to Narayana Hospital, Nellore and later shifted to Government General Hospital, Chennai. It is further case of the petitioners that they have spent an amount of Rs.2,25,000/- towards medical expenses. While the deceased was undergoing treatment he succumbed to injuries on 27.05.2014. A case was registered in Crime No.161 of 2014 under Section 337 of IPC against the respondent Nos.1 and 2. It is further case of the petitioners that the deceased was aged about 27 years at the time of accident and he was earning Rs.500/- per day and the said amount was being contributed to the maintenance of the family. In view of the sudden death of the deceased, the petitioners approached the Tribunal by filing the claim petition claiming Rs.15,00,000/- towards compensation.

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Respondent Nos.1 and 2 i.e., owner of the offending TractorTrailer and the driver remained ex parte . The respondent No.3 contested the claim petition by filing counter-affidavit contending that the accident was occurred due to the negligence of the deceased and he was a gratuitous passenger. It was further contended that the driver of the Tractor-trailer had no valid driving license at the time of accident and thereby the owner of the offending vehicle violated the terms of

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the policy. With the above pleadings the respondent No.3 prayed to dismiss the claim petition.

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Considering the oral and documentary evidence put-forth by the parties, the Tribunal by order under challenge awarded compensation of Rs.10,33,500/- together with interest at the rate of 6% per annum from the date of petition till the date of realization holding all the respondents jointly and severally liable to pay the said compensation. Aggrieved by the same, the present appeal is preferred.

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Heard the learned counsel for the appellant and learned counsel for the respondents.

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Perused the record.

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Though various grounds are raised in the appeal, during the course of hearing the learned counsel for the appellant contested the appeal on the only ground that the appellant is not liable to pay compensation in as much as, the insurance policy does not cover the risk of third party. Apart from the same, he would also submit that the deceased was an unauthorized passenger. Therefore, the question of

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paying compensation by the appellant does not arise. On the other hand, the learned counsel for the respondents would submit that as on the date of accident the offending vehicle was insured with the appellant and therefore the appellant cannot escape from the liability of payment of compensation. He would further submit that, this Court may direct the appellant to pay compensation and later recover the

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same from the owner of the offending vehicle, in the event this Court convey to the conclusion that, the appellant is not liable to pay compensation.

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Having considered the submissions made by the counsel on either side, this Court finds that there is considerable force in the argument advanced by the learned counsel for the respondents. Further, the issue involved in the present case no more res integra in as much as the Honourable Supreme Court in the case of V.Ranganathan and Another Vs. The Branch Manager, United India Insurance Company Limited¹ reported in 2022 Supreme (SC) 1873 had held that though the insurance company is not liable to pay compensation, it was directed to pay the compensation as determined by the Tribunal and later the same can be recovered from the owner of the offending vehicle. Placing reliance on the judgment referred to herein above, this Court has no hesitation to hold that the appellant has to pay compensation to the respondents/claimants as directed by the Tribunal, and later the same can be recovered from the respondent Nos.1 and 2 in accordance with law.

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