Insurance Company is not liable to pay compensation for gratuitous passengers

1. Aggrieved by the award dated 03.10.2002 in O.P.No.497 of 1998 passed by the Chairman, M.A.C.T-cum-I Additional District Judge, Ongole (for short “the Tribunal”), the second respondent/United Insurance Company Limited preferred the instant appeal.

The respondents 1 to 3 in the appeal are claimants before the Tribunal and respondent No.4 herein is the first respondent before the Tribunal.

2. The factual matrix of the case is thus:

a) The claimants are wife and minor children of the deceased—D. Hanumantha Rao of Martur village in Prakasam District. Their case is that the deceased used to raise tobacco seed nursery and sell away seedlings. On the intervening night of 21/22-07-1998 deceased and two others purchased the tobacco seed grains and got into the lorry bearing No.AHH 2279 and paid fair to the driver and started to Martur. On the way at about 3.30 A.M. the driver drove the lorry in a rash and negligent manner and while he was overtaking the front vehicles his lorry turned turtle and marble stones in the lorry fell on the persons traveling in the lorry including the deceased and thereby the deceased and two others crushed and died on the spot. It was averred that accident occurred due to the fault of lorry driver. It was further averred that due to sudden demise of the deceased the claimants became destitutes. On these pleas claimants filed MVOP No.497 of 1998 against respondents 1 and 2, who are owner and insurer of the offending lorry and claimed Rs.1,50,000/- as compensation under different heads mentioned in the OP.

b) Respondent No.1 remained ex parte.

c) Respondent No.2/Insurance Company opposed the claim contending that accident was occurred due to the unknown lorry which hit the crime lorry. R2 further contended that the driver of the offending lorry had no valid licence at the time of accident. Nextly, R2 contended that the deceased travelled in the lorry as gratuitous passenger and so Insurance Company is not liable to pay the compensation. Finally, R2 contended that claim under different heads is highly excessive and untenable.

d) During trial P.Ws.1 and 2 were examined and Exs.A.1 to A3 were marked on behalf of claimants. Policy copy filed by R2 was marked as Ex.B1.

e) A perusal of the award would show that issue No.1 which relates to fault of lorry driver is concerned, the Tribunal basing on the evidence of PW2—Putta Nageswara Rao who travelled in the crime lorry along with the deceased, concluded that the accident was occurred due to the fault of lorry driver. Issue No.2 which relates to quantum of compensation and liability of the respondents is concerned, the Tribunal granted Rs. 1,11,000/- as compensation under different heads as follows:

Loss of dependency Rs. 1,04,000/-

Funeral expenses Rs. 2,000/-

Loss of consortium Rs. 5,000/-

Total Rs. 1,11,000/-

The said amount was awarded with proportionate costs and simple interest @ 9% per annum from the date of OP till the date of realisation.

f) Then liability is concerned, first respondent was found to be the owner of the vehicle and liability was fastened on him. The 2nd respondent/Insurance Company repudiated its liability on the plea that deceased travelled in the lorry which is a goods vehicle as a gratuitous passenger and his risk is not covered under the terms of policy. However, the Tribunal negatived its contention relying upon the decision reported in New India Assurance Company vs. Satpal Singh and others (AIR 2000 Supreme Court 235 (1)).

Hence, the appeal by the 2nd respondent/Insurance Company.

3. Heard arguments of Sri Naresh Byrapaneni, learned counsel for appellant/Insurance Company and Sri R.Raghunandan learned counsel for respondents/claimants. Appeal against respondent No.4/owner of the lorry was dismissed for default on 15-12-2008. However, in view of the fact that he remained ex-parte and suffered decree before the Tribunal, his absence will not have any effect in the appeal in the light of decision reported in Meka Chakra Rao vs.