Partly allowed

New India Assurance Comp. Ltd. v. Gajula Lakshmidevi and 5 Ors.

Telangana HC6 Nov 2013MACMA/495/2009

Case brief

AI extract

What is this about?

The court allowed an appeal by an insurance company partly. While rejecting the claim that deceased passengers were unauthorized hamalies, the court apportioned 75% negligence to the moving lorry and 25% to the parked lorry, ordering the appellant insurer to pay 75%.

What did the court decide?

Appellant-insurance company to pay 75% of awarded amount; other insurers/owners jointly liable for remaining 25%; appeal allowed on apportionment.

New India Assurance Comp. Ltd. Vs Gajula Lakshmidevi… — Motor Accident Claims | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR

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M.A.C.M.A. No. 495 of 2009

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Judgment:

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This appeal is directed against the award, dated 15.04.2002, passed in MVOP No.562 of 2000 by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Kurnool.

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The respondents 1 to 3 herein are the claimants and the appellant herein is the third respondent in the said OP. The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience.

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The brief facts of the case are as follows. On 23.05.2000 at about 10.00 PM the deceased Balija Gajula Venkata Ramudu and three others were proceeding in a lorry to go to Bangalore for bringing Pine Apple fruits. The tyre of the lorry got punctured near Gooty. In view of the same, they engaged another lorry bearing No.AP 04T 444, which was going towards Bangalore with some load, to bring Pine Apple load from Bangalore. They were sitting in the cabin and when the said lorry reached Vadiampeta village, the driver of the said lorry is alleged to have drove the same at high speed in a rash and negligent manner. Consequently, the said lorry dashed against one Borewell lorry bearing No.KA 03 1035 at about 3.00 AM. It is alleged that the said Borewell lorry was parked along the left side of the road without any parking signals. Due to the impact, the deceased died on the spot and others sustained injuries and both the vehicles were damaged. Alleging that the accident occurred due to the negligence of both the vehicles the claimants claimed compensation. The first claimant is the wife of the deceased and claimants 2 and 3 are the children of the

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deceased. They claimed total compensation of Rs.3,00,000/-.

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The respondents 1 and 2 are the owners of the lorries involved in the accident. They remained ex parte and did not contest the case. The third respondent is the insurer of the lorry bearing No.AP 04 T444 and the fourth respondent is the insurer of the lorry bearing No. KA 03 1035. Both the insurance companies have denied their liability. The specific case of the third respondent-insurance company is that the deceased was traveling as an unauthorized passenger and therefore the insurance company is not liable to pay compensation.

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On behalf of the claimants PWs.1 and 2 were examined and Exs.A1 to A5 were marked. On behalf of the respondent No.3insurance company RW.1 was examined and Exs.B1 to B3 were marked.

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The Tribunal, on the issue of negligence came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the lorry bearing No.AP04 T444. As far as liability of the insurance company is concerned, the Tribunal came to the conclusion that since the deceased and others were traveling as Hamalies the insurance company is liable to pay compensation.

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Learned counsel for the appellant-insurance company mainly raised two points. His main contention is that the evidence on record shows that the lorry bearing No.KA 03 1035 was parked along the road without any signals i.e., parking lights and such parking of the vehicle without putting any stones or without keeping the parking lights on amounts to negligent act of the driver of the said lorry and in view of the same the Tribunal ought to have fastened the liability on both the drivers by apportioning their negligence. It is also his submission that the deceased and others were traveling as unauthorized passengers, therefore the Tribunal ought not to have fastened the liability on the

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appellant-insurance company and ought to have passed award only against the owners of the vehicles.

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In spite of service of notice, none appeared for respondent No.6-Insurance Company, nor is there any representation made on its behalf.

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The Tribunal seems to have relied upon the contents of the FIR and the circumstances that the police after completing investigation laid charge sheet against the driver of the lorry AP04 T444. Of course, the Tribunal may be justified in considering the contents of FIR and also the charge sheet, but it has to be seen that they are the documents collected during the course of investigation. The conclusions reached by the police may be correct or may not be correct. The Tribunal has to independently assess the evidence on record and come to a just and reasonable conclusion. Admittedly, the accident occurred at 3.00 AM and the lorry bearing No. KA 03 1035 was parked along the left side of the road. The evidence of PW.2 clearly shows that the said lorry was parked without taking any precautions i.e., without keeping any stones around the said lorry or without keeping the parking lights on. Thus, it is clear that the lorry KA 03 1035 was parked without keeping the parking lights on. The said act of the driver amounts to negligence. Of course the evidence on record shows that the driver of the lorry bearing No.AP04 T444 had also drove the lorry in a rash and negligent manner at high speed. The main responsibility lies on the driver of the lorry who is driving the vehicle. He must observe the road from a distance and see whether any vehicles have been parked along the road. He ought to have observed the parked lorry and should have taken precautionary measures to prevent the accident. Therefore, the main responsibility lies on the driver of the lorry bearing No.AP04 T444. Having regard to

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the facts and circumstances of the case, I am of the view that the negligence must be apportioned between both the lorries as 75% : 25%. This point is decided accordingly.

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As far as fastening of liability is concerned, admittedly the deceased and others were traveling in the lorry for the purpose of bringing Pine Apple fruits from Bangalore. It has come in the evidence that they were engaged as Hamalies. It appears that the deceased was also doing fruit business and was also working as Hamali. The main purpose of their visit was only to load Pine Appeal fruits in the lorry. When any person or Hamalies travel in a vehicle for the purpose of bringing particular load from one place to another place the purpose for which they are traveling in the lorry should be taken into consideration. When the purpose of traveling in a particular vehicle is only for the purpose of bringing a particular load from a particular place they have to be treated as Hamalies. It is the case of the claimants and PW.2 that the deceased and others boarded the lorry to go to Bangalore for bringing Pine Apple fruits and there is nothing to disbelieve their version. Even the contents of FIR and charge sheet also supports the said version. Therefore, it is clear that they are not traveling as passengers. In view of the same, it cannot be said that the deceased was traveling as unauthorized passenger in the vehicle. In view of the above discussion, I do not see any reason to interfere with the finding of the Tribunal in fastening the liability on the appellantinsurance company.

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In the circumstances, as far as the amount awarded or the apportionment made by the Tribunal is concerned the same need not be interfered with, but as far as the liability of insurance companies are concerned, the appellant-insurance company shall pay 75% of the amount awarded and the owner and insurance company i.e., the

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respondents 5 and 6 shall be jointly and severally liable to pay 25% of the amount awarded.

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Subject to the modifications made supra, the appeal is allowed in part. No costs.

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As a sequel, the miscellaneous petitions, if any, pending in this appeal shall stand closed.

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____________________ B. CHANDRA KUMAR, J.

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Date: 06.11.2013 Nsr

New India Assurance Comp. Ltd. v. Gajula Lakshmidevi and 5 Ors.

Case brief

What is this about?

What did the court decide?

New India Assurance Comp. Ltd. v. Gajula Lakshmidevi and 5 Ors.

Case brief

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What the court decided

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