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2007 Supreme(AP) 91
Andhra Pradesh High Court
Judges : K.T.SANKARAN
DISTRICT INSURANCE OFFICER, KOZHIKODE - Appellant
Versus
M.K.MOOSAKUTTY - Respondent
Decided On : 01/24/2007
M. F. A. 234 Of 2001
Headnote:
Motor Vehicles Act, 1988 – Section 2 (34) – Accident – Negligence – Public Place – Compensation – Petitioner is owner of a country boat – Boat was tied ariver bank of Chaliyar river at a ferry at perinkadavu on 28-8-1993 – At about 12 noon on that day, lorry owned and driven by first respondent in claim petition, hit on boat and damage was caused to boat – It is alleged that boat was damaged completely – Allegation is that first respondent drove vehicle in a rash and negligent manner in high speed and suddenly reversed lorry and in that process lorry hit on boat – Second respondent is insurer of the lorry – A sum of Rs. 90,033/- was claimed as compensation – Whether river bank from where taking of sand is prohibited is a public place within meaning of Section 2 (34) of Act, 1988 – Held, It is true that P. W. 2 stated in cross-examination that boat was being hired for taking sand and that boat was not being used for taking persons to other side of river – It is not stated by P. W. 2 that on date of accident, boat was engaged in illegal activities – It cannot be held that petitioner is not entitled to compensation – Finding of Tribunal that petitioner is entitled to get compensation is confirmed – Learned counsel for appellant submitted that even if insurer is made liable to pay compensation, in facts and circumstances of case and in view of fact that lorry was used for illegal transportation of sand, insurer is entitled to recover amount from owner of vehicles, namely, insured – He relied on decision in National Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT 781 (SC)): (AIR 2004 SC 1531 ) – All necessary facts to decide question have not been brought out in evidence and relevant documents have not been marked in evidence – Court inclined to direct Tribunal to consider this question and decide whether insurer is entitled to recover amount from insured – Award passed by Tribunal is confirmed – Appeal partly allowed.
( 2 ) THE petitioner before the Motor Accidents Claims Tribunal was the owner of a country boat. The boat was tied at the river bank of Chaliyar river at a ferry at perinkadavu on 28-8-1993. At about 12 noon on that day, lorry bearing Registration no. KL-11 /a-2579, owned and driven by the first respondent in the claim petition, hit on the boat and damage was caused to the boat. It is alleged that the boat was damaged completely. The allegation is that the first respondent drove the vehicle in a rash and negligent manner in high speed and suddenly reversed the lorry and in that process the lorry hit on the boat. The second respondent is the insurer of the lorry. A sum of Rs. 90,033/- was claimed as compensation.
( 3 ) THE first respondent did not file any written statement. The second respondent - insurer - contended in the written statement, inter alia, as follows : The permit for running the vehicle is given for plying in all fit roads of Kerala. The approach road to the river bank where the accident occurred is 'kutcha' road and as such it is not a fit road. The road in question is not a public place or a public road. There is violation of the policy condition. As per G. O. (P) 132/93 lad dated 29-6-1993, removal of sand from chaliyar river is prohibited. The lorry and the boat were engaged in transporting sand which was illegal and unauthorised. The lorry was engaged in unlawful transportation of sand in a private place and this is a violation of the policy condition. The insurer, kerala State Insurance Department, has no liability to pay compensation.
( 4 ) BEFORE the Tribunal, the petitioner was examined as P. W. 1 and another witness was examined as P. W. 2. The Tribunal held that the accident occurred due to the rash and negligent driving of the lorry by the first respondent in the claim petition. It was held that the petitioner is entitled to get Rs. 75,000/- as compensation for the damage caused to the country boat. The Tribunal rejected the contention raised by the insurer that the place where the accident occurred is not a public place. The insurer was made liable to pay the amount as per the award passed by the Tribunal. In this Appeal, the insurer challenges the award passed by the tribunal.
( 5 ) SECTION 2 (34) of the Motor Vehicles act, 1988 reads thus :
" (34) "public place" means a road, street, way, or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;"
The corresponding provision in the Motor Vehicles Act, 1939 was Section 2 (24) which contained the same definition of 'public places'. Section 147 (1) (b) (i) of the Motor vehicles Act, 1988, reads thus :
"147. Requirements of policies and limits of liabilities :- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which - (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2 ). (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place:"
The corresponding provision in the Motor Vehicles act, 1939 was Section 95 (1 ). The contention of the insurer is that river bank and the road leading to the river bank are not public places. I am of the view that this contention is unsustainable in view of the definition of 'public place' in the Motor vehicles Act. To constitute a public place, the place need not be a motorable road or
