Dismissed

The National Insurance Company Limited, Hyderabad. v. Kum. Rathod Sakku Bai and Another

Telangana HC21 Aug 2023MACMA/2789/2011

Case brief

AI extract

What is this about?

In a motor accident civil miscellaneous appeal, the High Court dismissed the appeal filed by the National Insurance Company. The court held that under the 'pay and recover' principle, the insurer must pay the awarded compensation to the claimants and subsequently recover the amount from the vehicle owner, despite the vehicle being a goods vehicle.

What did the court decide?

Insurance Company directed to pay the awarded compensation to the petitioner and recover the same from the vehicle owner.

The National Insurance Company Limited, Hyderabad… — Motor Accident Claims | Telangana HC (2023)

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[³³⁰⁴ ]

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IN THE HIGH COURT^{FORTHE STATE OF TELANGANA} AT HYOERABAD

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MONDAY, THE^{TWENTY FIRST DAY OF AUGUST} TWO TI-IOUSAND AND^{TWENTY THREE}

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PRESENT

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THE HONOURABLE^{SRI JUSTICE NAMAVARAPU RAJESHWARRAO}

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MOTOR ACCID ENT CIVIL^{MISCELLANEOUSAPPEAL NO: 2789 OF 2011}

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Appeal filed Under Section^{'173of MotorVehicles Act against-the O'9".I} "19.r-r.., . ,-r'decree in OP.NO. 663^{of 2OO4 dated.18-1 1-2009on the file of the Court of therVl - -tra r -..,--} Additional District and^{Sessions Judge} [FTC]^{at Vikarabad, Ranga Reddy District.}

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Between:

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The National lnsurance^{Company Limited, Hyderabad., Rep by its, Divisional} fr,ianagii, Divisional^{Office No. [v Twin CityMarket Complex,M J Market'} Hyderabad.

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...APPELLANT/2NO^RESPONDENT

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AND

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l.Kum.Rathodsakkubai,D/oLateLaxmanStudent,minor,repbyherMaternal ij;ae 6rp;la Shankai^{or Pawar Shankar, S/o Pandu' age 46^years,occ} Agrl. Rl/o Aienti^{Tanda, Adikicherla Village,Peddamul Mandal, Rangareddy} District

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...RESPONDENT/PETITIONER

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K. Ratnam, S/o^{Sidda Ramulu Owner of TractorRJo Ramanpally Village'} Kodangal Mandal,^{Mahabubnagar District}

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...RESPONDENT/1^{ST RESPONDENT}

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Counsel for the Appellant^{: SRl. V VENKATARAMIREODY}

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Counsel for the Respondents:^{VENKATREDDY THIPPARTHI}

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The Court delivered the^{following:JUDGMENT}

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RRN,J MACMA No.27lt9 of ?01 I

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THE HON'BLE SRI JUSTICE NAJUAVARAPU RAJESI{WAR RAO

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M.A.C.M.A. No.2789 OF 2()1l

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JUDGMEI{T:

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The present M.A.C.M.A is frled by the appellant/respondent No.2/lnsurance Company under Section 173 of the Motor Vehicles rn Act, 1988, aggrieved by the^judgment dt. 18. 1l.2OO9^passed O.P.No.663 of 2OO4 on the fiIe of the Chairman, Motor Accident Claims Tribunal-cum-Vl Additional District & Sessions Judge^(Fast Track Court), Vikarabad, Ranga Reddy District, (for short 'the Tribunal').

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For convenience, the parties will be referred to as they are arrayed before the Court below.

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3 Brief facts of the case are that on 27.10.2003 at 5.30 P.M., Smt. Mothi Bai (hereinafter referred to as "the deceased") n,as proceeding on Tractor bearing No.A.P. 22 U-4O3O from Satipur Village to Urenti Tanda and reached Urenti Tanda The driver of the tractor drove in a rash and negligent manner rvith high speed, due to which the deceased felldon,n from the tractor on the road arrd the back wheel of the tractor ranover her, and on the way to the hospital, the deceased died. The Police have registered a case in Cr.No.l07 of 2003. Hence, the claim petition IS seeking compensation of Rs.2,O0,O00/ -.

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RRN.J MACMA No.27E9 of20l^I

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I i I I J l I

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Aggrieved by the same, the National Insurance Company Limited frled the present appeal and questioned the liability'

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karned counsel for the appellant/Insurance Company to support his contentions, he relied upon the^{judgment as} Gan7lla RaJu and others u. Ragavarapu^{Apparao and} otherst, t]le lordship heard^{the case and observedas follows:}

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"...2. Tle^{deceased was stated- to lnue been} trauelling in the trailer of a^{tractor,bearing} Registration No.AP 5T^{1560/1561, tahich met uith an} accident, resulting in his instantaneous^death.

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Tle onlg contention aduance bg leaned^counsel for^{the appellants-Claimants,is that the Tribunalhas} rat made respondent No.3-The^{New India Assurance} Compang Limited^jointlg and seuerally^{liable along} uith respondent Nos.l and 2.^{The learned counsel} furtler^{submitTedthat as the trailer is a part of tte} tractor, as held by this Court^{in someof its judgments,} respondent No.3 is liable.

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In oriental Insurance Compang^{Limited u.} Biju Mohan and others,2o)7^{(s) ALD 70 (SC) 2OO7 (7)} Scate 753, it uas held that^{the lnsurance Company is} not liable for tte death or injunes caused^{to th-e} laborers trauelling in the trailers.^{This ho.s been} reiterated in United India Insuronce^{CompangLimited} u. Serjerao and others, 2OO7^{AIR SCW 7280.}

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Tte perusal of the^{policy shou.rs that premtum} h;;'s been paid onlg for diuer of the^{tractor. As the} premium does not couer the labourers,^respondent No.3-Insurance Compang is not liable to^paA

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I 2olo (l) ALD III

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3 RRN.J MACMA No.2?E9 of 201 |

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compensation for the death of the deceased, who uas, allegedlg, a labourer trauelling in tle trailer... .. ."

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Based on the above decision, leamed counsel for the appellant-Insurance company submitted that in the present case, the tractor is not a passenger vehicle; it is a goods vehicle, and the Insurance company is not liable to pay any compensation. He relied on the Judgment of the High Court of Andhra Pradesh " Ditis'lonal Manager, Orlental Insurantce Co.ltd. u. Bathlna Srlnlv<rsa Rao2 the lordship observed that as follows:

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" . ....(41 Ex.A.6 copy of the insurance policy issued by the appellant, marked by the first respondent shows that second respondent paid a premium of Rs. 1,2451towards liabilitg of 'Public risk' and did not paA anA premium to couer tle isk of ang of his emplogees trauelling in the lorry. In uiew of the prouiso to Section 1a7(1) of the 1988 Act, tle second respondent uho had an option either to take out a policy to couer tlrc risk of his employees or not, chose not to take a policy couering the nsk of his emplogees in th.e lorry. Unless and until the appellant (insurer) takes up the responsibility to couer the risk of the emplogees of second respondent, question of making it liable to paA ang compensation to the employees of the second respondent does not aise..._."

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l00S l.a\ suir (AI>)lgl

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RRN.J MACMA No²⁷⁸⁹ of20l^I

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6, Based on the above judgment, learned counse I for the appellant-Insurance company submitted that unless and until there is a policy to the employees, travellers or passenger the Insurance Company is not liable to pay compensation. He further relied on the Judgment Manager, National Insuritnce Compang Llmlted a. Saju P.Paul and Anothers wherein the Hon'ble Supreme Court held as under:

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'.....1n the present case, Section 147 as it originally eisted in tte 1988 Act is applicable an^d, accordinglg, the judgment of the supreme Court in Asha Rani, (2O03) 2 SCC 223 is fullg attracted. The High Court committed a graue effor in talding that Section 147(1)(b)(il talks within its fold ang liabilitg uhich mag be incuned bg the insurer in respect of the death or bodilg injury to ang person. The High Court also erred in holding that the claimant utas trauelling in tle uehicle in aurse of his employment since he was a spare diuer in the uehicle although he was not driuing the uehble at the releuant time but he uas directed to go to the uork site by his emploger. The High Court enoneouslg assumed that tlrc claimant uas injured in the murse of emplogment and ouerlooked the fact that the claimant uas not in ang manner engaged on the uehicle that met with an accident but he u.tas emploged as o diuer in another uehicle owned bg M/ P.L. Construction Compang. Th.e insured (otuner of the uehicle) got insurance couer in respect of the subject goods uehicle for driuer and cleaner onlg and not for ang other emplogee. There is no insurance auer for the spare dnuer in the policg. As a matter of law, the claimant did not cease to be a gratuitous passenger though he claimed that he uas a spare driuer. Th.e insured had paid premium for one driuer and one cleaner and, therefore, second dnuer or for

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' lltt^I I ) I Suprcmc^Coun Cases 4l

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RRN.J MACMA No.27E9 of20l I

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that purpose " spare driuer" utas not auered under tlrc policg....."

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In the present case, she is not the spare driver; she was the only passenger travelling with the deceased in the said tractor. Accordingly, this judgment is not applicable in this case or peculiar cases. In some cases, claimants may recover from the insurance company and the insurance company may recover from the vehicle owner.

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Per contra, learned counsel for the respondents relied up on the judgment of Hon'ble Supreme Court in Manuara Khatun and others vs. Rajesh Kumar Singh and Others with Mamoni Saikia Mohanty and others vs. Rajesh Kumar Singh and othersa wit}:' regard. to the ltabilltg of pag and. recouery as follorvs:

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". . . . 1 3. The only question, uhich anses fo, consideration in these appeals, is u.thether tlLe appellants are entitled for an order against the insurer of the offending uehcle i-e (respondent 3) to pag the awarded sum to the appellants and then to recouer the said amount from the insured (ou.tner of tle offending uehicle Tata Sumo) respondent 1 in the same proceedings.

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The aforesaid question, in our opinion, remains no more res integra. As ute notice, it was the subject-matter

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{ (2017) 4suprcrilc ('oun Case\ 79(r

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RRN,J MACMA No.27E9of20ll

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of seueral decistons of this Court rendered bg threeJudge Bench and twoJudge Bench in the past uiz, National Insurance Co.Ltd, u. Baljit Kaur, National Insurance Co.Ltd u. Challa [Jpendra Rao, national Insurance Co. Ltd. u. Kaushalaga Devi, National Insurance Co. u. Roshan Lal and National Insurance Co. Ltd. u. ParuatLmeni.

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This question also fell for consideration recently in National Insurance Co.Ltd. u. Saju P. Paul wherein this Court took note of entire preuious case law on^th.e subject mentioned aboue and examined the question in the contert of Section 147 of the Act. While allouing^the appeal filed by tle insuraVce companA bg reuersing the judgment of tle high Court, it was held on facts that since the uictim was trauelling tn offending uehicle^as gratuitous passenger" and hence, the insurance companA cannot be held liable to suffer ttte liabilitg aising^out of accident on ttte strength of the insurance^policy. Hotaeuer, this Court keeping in uiew th.e beneuolent^object of the Act and other releuant factors arising in the case, issued tlre directions against the insurance companA to pay the awarded sum to the claimants and then to recouer th.e said sum from the insured in the same proceedings bg applying the pinciple of "pag and recouer

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The facts of the case at hnnd are somewhat identical to the facts of th.e case mentioned supra becouse here also we find that tLp deceased uere found trauelling as " gratuitous passengers" tn the offending uehicle and it tuas for this reason, the insurance companies^u.te re

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RRN.J MACMA No.2?89 of20l^I

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exonerated. In Saju P. Paul case^{o,lsohauing held that th'e} uictim utas "gratuitous^passengerD '^{this Court issued} directions against the insurer^{of the offending uehicleto} first^{satisfy the awardedsum and tlen to recouer the} same from the insurer^{in the sameproceedings.}

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lp. The learned counsel for^{Respondent3 (UnitedIndia} Insurance Co.Ltd), howeuer,^{contended that the} facts^of the case at hand are not^{identicalto the one inuolued in} Saju P.Paut and hence the law^{laid down therein cannot} be applied to the facts of^{tLe case at twnd. The learned} counsel also submitted thot^{since the questioninuolued} herein is referred^to a^{larger Bench qndhencethi.sCourt} shoutd not giue such directions,^{as praged bg tle} appellants, ag ainst the^{insurance company'.... "}

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g. l,earned counsel for the appellant/Insurance^Company submitted that the vehicle^{is a goods vehicle and not a} passenger vehicle. This Court^{also followsthe above judgment} as to whether the vehicle^{is a goodsvehicle or passenger} vehicle, the passenger has^{to be treatedas a "gratuitous} passenger". So he should not^{sufferto get compensation from} the Insurance companv^{or from the owner of the vehicle.}

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10 In view of the^{same, this Court finds that the Insurance} Company has to^pay compensation^{to the petitioner/claimant} and recover the same^{from the owner of the vehicle in} accordance with las'

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RRN.J MACMA No 2789 of 201 I

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1 1. Accordingly, the M.A.C.M.A hled by the Insurance

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company is dismissed by directing the Insurance company to pay the amount awarded by the Court belou, to the petitioner and recover the same from the vehicle owner in accordance

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with the law. There shall be no order as to costs.

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Miscellaneous petitions, if any, pending shall stand

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closed.

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SD/. MOHD.^ISMAIL ASSISTANT^REGTS

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//TRUE^COPY//

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sEcTloN^O CER

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To, I The-Vl Additional chasrr*^.^{- cuvn- Oistrict *oo i} rro sessions^Judge [FTc]^{at Vikarabad' Ranga} Redtv District.^{<wf lt' ;r<ovla)} z. tsIl"ic"i.''diii^{V ver'rxnrnnnMlREDDY' Advocate [oPUCl} ;. 5nI &^{ii sHi. veNxnr ndbovrHrppnRTHl'Advocate[oPUc]}

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Two^{CD CoPies}

ADKw

HIGH COURT

DATED:2110812023

JUDGMENT

MACMA.No.2789^{ot 2011}

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DISMISSING THE^MACMA WITHOUT COSTS

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C ""d,a w- f,,"\

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY, THE TWENTY FIRST DAY OF AUGUST TWO THOUSAND AND TWENTY THREE

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FRESET{T

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THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

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MOTOR ACCIDENT CIVIL MI SCELLAN EOUS APPEAL NO: 2789 OF 20't1

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i3etvreen'

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The National lnsurance Company Lrmited, Hyderabad., Rep.by its Divisional Manager, Divisional Office No. iV Twin City Market Compel, M.J.Market, Hyderabad.

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...APPELLANT/2ND RESPONDENT

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A$,lD

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1 Kum. Rathod.sakku bai, D/o Late Laxman Student, minor, rep.by her Maternal Uncle^J.arupala Shankar-or Pawar Shankar, S/o pandu, age 46 years, Occ fgrl^{R/oArenti Tanda, AdikichertaViltage,peddamut Man?al, R-angaieddy} Distri:,1

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.,.RES PONDENT/PETITIONER

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2 K. Ratnam, S/o Sidda Ramulu Owner of Tractor R/o Ramanpally Village, Kodangal Mandal, Mahabubnagar Drstrict

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..-RESPONDENT/1^ST RESPONDENT

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Appeal filed Under section 173 of Motor Vehicles Act agalnst the order and decree in oP.No. 663 of 2004 dated.lB-1'1-2009 on the fite of the court of the vl Additional District and Sessions Judge [FTC] at Vikarabad, Ranga Reddy District

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OREER:^-Ihis appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the Case and upon hearing the arguments of SRt V VENKATARAMI REDDY, Advocate for the Appellant and of SRl. VENKAI REDDY THtppARTHt Advocate for the l,:)s[;.)nc]L:rrr :;

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Thls e ourt doth Order and Decree as follows^:

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