Partly allowed

The United India Insurance Company Limited, v. Vuppu Subba Rao

Telangana HC26 Nov 2014MACMA/2016/2007

Case brief

AI extract

What is this about?

The court held that while the policy did not originally cover coolies, the deceased became third party victims after falling from the load due to negligent driving, making the insurer liable. The appeal was partly allowed, upholding the Tribunal's award of 60% indemnity after apportioning 40% negligence to the deceased.

What did the court decide?

Appeals partly allowed; insurer held liable for 60% of the Tribunal's award; no interference with the quantum or rate of interest.

The United India Insurance Company Limited, Vs Vuppu… — Motor Accident Claims | Telangana HC (2014)

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HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO M.A.C.M.A.Nos.1851 & 2016 of 2007

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COMMON JUDGMENT :

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M.A.C.M.A.No.1851 of 2007

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The appellant-insurer filed this appeal aggrieved by the order/award dated 10.04.2004 in M.V.O.P.No.248 of 2004 on the file of Motor Accidents Claims Tribunal–cum-III Additional District Judge, Ongole (for short, ’Tribunal’) awarding compensation of Rs.1,42,400/with interest at 7.5% p.a. against the claim of Rs.1,00,000/- in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).

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M.A.C.M.A.No.2016 of 2007

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2) The appellant-insurer filed this appeal aggrieved by the order/award dated 10.04.2004 in M.V.O.P.No.247 of 2004 on the file of Motor Accidents Claims Tribunal–cum-III Additional District Judge, Ongole (for short, ’Tribunal’) awarding compensation of Rs.1,42,400/with interest at 7.5% p.a. against the claim of Rs.1,00,000/- in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, ‘the Act’).

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3) Heard Sri E.Venu Gopal Reddy the learned standing counsel for the appellant and Sri T.R.Koteswara Rao learned counsel for the claimants in the respective appeals. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

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4 ) The contentions in the grounds of appeal as well as oral submissions by the appellant-insurer in nutshell are that the Judgment and decree of the Tribunal is contrary to law, weight of evidence and probabilities of the case, that the Tribunal erred in giving finding that tractor trailer bearing No.AP 7 U 6623 & 6624 driver was rash and

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negligent that caused the accident, that the Tribunal ought to have held that the deceased were not entitled to travel in the crime vehicle, that the Appellant insurer is not liable to pay the compensation as the deceased were traveling in the subject vehicle unauthorisedly, that the insurer is not liable to pay the compensation as the terms and conditions of the policy Ex.B-1 are violated since the tractor has to carry only one person i.e., the driver of the tractor and no other person is allowed to travel in the tractor trailer, that the Tribunal ought to have seen that the owner of the tractor trailer did not pay any premium covering the risk of coolies, that the Tribunal erred in fixing the income of the deceased at Rs.900/- per month in the absence of any documentary evidence and the Tribunal ought to have fixed less income and prayed to allow the appeal as prayed for. Learned counsel for the appellant reiterated the same during the course of hearing. On the other hand, the learned counsel for the Respondentclaimants contended that the above contentions are untenable and there is nothing to interfere with the awards of the Tribunal, but for want of cross-objections to enhance the compensation awarded since utterly low and to dismiss the appeal.

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5) Now the points that arise for consideration in the appeal are:

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1. Whether the award of the Tribunal fastening joint liability on the insurer with insured to indemnify the insured for the claimant(s) and requires interference by this Court while sitting in the appeal?

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2. Whether the quantum of compensation awarded by the Tribunal is not just and requires interference by this Court and if so with what extent and against whom with what rate of interest with what observations?

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3. To what result?

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POINT No.1:

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6) The fact that the claimants are parents of the deceased in both the appeals and both the deceased are aged about 19 to 21 years spinsters, that on 25.11.2003 when the deceased along with others

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traveled in a tractor-cum-trailer bearing Nos.AP 7 U 6623 & 6624 with a load of sand as coolies from Murikipudi vagu to Martur on the National Highway road in between Chilakaluripeta to Ongole Road, when the said tractor and trailer reached near Tatapudi junction single bridge, all of a sudden the driver of the tractor driven the tractor with shaking movement with negligent driving resulting which the deceased fell down and the tractor-trailer ran over the deceased, due to which the deceased died.

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7) The liability of the Respondents to pay compensation jointly and severally for the death of the deceased concerned, admittedly the accident took place due to the rash and negligent driving of the driver of the tractor-cum-trailer, which was insured with the 2^nd respondent as per Ex.B-1 policy and the same is in force and valid on the date of accident even as per the evidence of R.W-1. Now, the contention of the insurer is that the deceased were traveling in the crime vehicle unauthorisedly which is in violation of the terms and conditions of the policy Ex.B-1. As per Section 147(1) proviso (i) of the M.V.Act, the Act policy covers liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee (a) engaged in driving the vehicle or (b) conductor or ticket examiner if it is public service vehicle, or (c) if it is a goods carriage (vehicle) being carried in the vehicle representing the goods (owner or attender of the goods) but for them, there is no Act policy coverage for other employees unless additional premium paid as per proviso (ii) to cover any contractual liability as also clearly laid down in

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National Insurance Company Limited V. Prem Bhai Pate l^[1] in paragraph Nos.13 and 14 and also in United India Insurance Co. Ltd.

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V. Serji Rao^[2] , Oriental Insurance Co. Ltd V. Brij Mohan^[3] . Thus, unless additional premium is paid, coolies or hamalies of the insured even not covered by Act policy to make Insurer liable. It was also held in

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Serji Rao (supra) that the person claiming as hamali if not a workmen under owner-insurer not covered by Workmen’s Compensation Act. Same is also held in United India Insurance Co. Ltd. V. Balaswamy^[4] . I n Sanjiv Kumar Samrat V. National Insurance Co. Ltd .^[5] it was held that in a goods carriage labourers for traveling, for policy is an Act policy not covered as no additional premium paid and the insurer is held thus not liable. For that conclusion referred Prembhai Patel supra and also National insurance Company V. Cholleti Bharatamma^[6] . In Manager, National Insurance Co. Ltd. V. Saju P.Pau l^[7] also the Apex Court reiterated the principle that insurer is liable to pay compensation in respect of those employees for whom insurance premium is paid and without which not liable for each and every employee, other than those covered by Section 147(1) proviso (i) of the Act. For those not covered by Act policy and no contractual liability undertaken, the owner alone held liable.

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8) From the above principle of law coming to the facts on hand, a perusal of the policy shows, it covered the risk under IMT 21, 48, 34, 36, 24 & 40 though not of IMT 39. The facts remain further from the evidence on record of P.Ws 1 and 2 in both claims including P.W-2 V.Ankalammaeye witness, with reference to Exs.A-1 to A-5 of which Ex.A-1 is F.I.R, Ex.A-5 charge sheet and Ex.A-2 post mortem report that on 25.11.2003 at 1.00 P.M, the 1^st informant-U.Leelavathi, the two deceased Guravamma, Durga, among others by name Ankalamma, yerikalamma, Ankamma, China Brahmayya all being coolies after loading the sand at Murikipudi vagu by sitting on the sand load of the trailer propelled to the tractor proceeding towards Martur, after crossing Tartapudi junction at bridge due to the rash and negligent driving of the driver giving jolts in driving, herself, Guravamma and Durga-the other two deceased were fallen down from trailer sand load and trailer run over the said Guravamma and Durga, who sustained severe injuries, Guravamma died at the spot and

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Durga while undergoing treatment was succumbed to injuries. As per the post mortem report in M.V.O.P.No.247 of 2004 of Guravamma, there are crush injuries including over occipital region of head among other injuries. Coming to the post mortem report in M.V.O.P.No.248 of 2004 of V.Durga, there are also the multiple and grievous injuries sustained under the vehicle and the doctor opined that the death is caused due to shock and hemorrhage due to the multiple accidental injuries.

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9) A perusal of the policy of both tractor and trailer insured shows that it is not a mere Act policy, but a standard package policy goods carrying commercial vehicle. The policy speaks from Page No.2 that besides basic (T.P) Rs.785/- + Rs.375/- for trailer and Rs.25/- for one employee carried. Thus, carrying one person only upto the permitted limit under the W.C. Act, risk is covered from the above limits of liability though it does not cover the risk of passengers carrying or for traveling as coolies (hamalies) even for loading and unloading as the policy not covered the risk of employees for loading and unloading under IMT 39 even for traveling on the trailer by sitting on load of sand for unloading. However, when the two persons died supra of the two claims are not met with death while traveling, but for after fall from the sand load due to the drivers negligent driving with jolts and fall therefrom and later by run over; the movement they fallen down, they cease to be the unauthorized persons traveling and became third parties and as they were run over the Act policy even covers the risk of such third parties when run over and met with death thereby, the deceased by the time, the trailer run over was a third party as held by this Court in United India Insurance Company

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Limited V. Kurva Yejju Mallamma^[8] as such, the Tribunal is right in holding that the insurer is liable to pay compensation and the contention of the respondent-insurer contra to attack the said finding is untenable.

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10) Here, but for sitting on trailer and fall therefrom, the accident could not be the result to say there is 40% negligence on part of deceased also for no permit to sit even policy covered the risk from this, now, coming to the quantum, the age of the parents of the deceased

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between 35 to 40 and as per Sarla Varma v. Delhi Transport Corporation^[9] , the multiplier applicable is 16 and the deceased was coolie, even as per Latha Wadhwa vs. State of Biha r^[10] in the absence of proof of earnings, minimum Rs.3,000/- to be taken and the accident dated 25.11.2003 and even Rs.3,200/- taken and if ½ deducted towards personal expenses of the deceased it comes to Rs.3,07,200/(3100x12x1/2x16). Apart from it, the claimants are entitled to Rs.25,000/towards funereal expenses, Rs.10,000/- towards loss of estate which all come to Rs.3,42,000/- and 60% therein comes to Rs.2,05,000/- is no way excessive and nothing to interfere in the award and no way excessive. Accordingly, point No.1 is answered.

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POINT No.2:

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11) In the result, both the appeals are partly allowed while holding that deceased though traveling as coolies for loading and unloading, since policy not covered risk the insurer not liable, however the movement they fell down became third parties and as vehicle run over them later for which they died by fixing 40% negligence on deceased, insurer since be made liable for 60% to indemnify insured the compensation for the claimants entitled what the tribunal awarded no way requires to reduce same not interfered with including on rate of interest. In other respects award of the Tribunal holds good. There shall be no order as to costs.

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12) Miscellaneous petitions, if any pending in this appeal, shall stand closed.

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_______________________ Dr. B. SIVA SANKARA RAO, J

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Date: 26-11-2014 ksh

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