Liability of a gratuitous/unauthorized passenger in a goods vehicle will not be covered under Section 147 of M.V. Act.

1. Aggrieved by the award dated 31.03.2004 in M.V.O.P.No.299 of 1999 passed by the Chairman, M.A.C.T-cum-District Judge, Chittoor (for short ‘the Tribunal’), the claimants preferred the instant appeal.

2. The appellants 1 to 3 herein are the claimants 1 to 3 in the O.P and respondents 1 and 2 herein are respondents 1 and 2 in the O.P.

3. The factual matrix of the case is thus:

(a) The 1st claimant is the wife and claimants 2 and 3 are the minor sons of the deceased – K. Rajendra Reddy and they are residents of Thupalle Village in Chittoor District. Their case is that on the night of 18.10.1997, the deceased loaded five Urea bags in the lorry bearing No.AP 26 T 549 and boarded the lorry at Chittoor to go to his village Thupalle, after getting down at M.Bandapalle. There were some other passengers traveling in the lorry. On the way when the lorry reached Mahankalamma Temple near M. Bandapalle, the driver drove the lorry in a rash and negligent manner and swerved it to the left side of the road and thereby lorry overturned and fell hitting against the boulders. As a result, the cabin was completely damaged and the persons in the cabin i.e, deceased and one Venkatesu received grievous injuries and died on the spot. It is averred that due to the death of deceased, the claimants who are his dependants lost their bread-earner. It is further averred that the accident occurred due to the fault of the lorry driver. On these pleas, the claimants filed M.V.O.P.No.299 of 1999 against respondents 1 and 2 who are the owner and insurer of the offending lorry and claimed Rs.3,00,000/- as compensation under different heads mentioned in the O.P.

(b) First respondent remained ex parte.

(c) The second respondent/Insurance Company filed counter and opposed the claim inter alia contending that the driver carried several unauthorized passengers including the deceased and the terms and conditions of the insurance policy do not cover the risk of such persons. On this main ground, the insurance company disowned its liability.

(d) During trial, PWs.1 and 2 are examined and Exs.A.1 to A.4 were marked on behalf of claimants. Policy copy filed by the 2nd respondent was marked as Ex.B.1.

(e) A perusal of the award would show that basing on the evidence of PW.2 – eye witness coupled with the documentary evidence such as Ex.A.1 – FIR, Ex.A.3 – M.V. Inspector’s report and Ex.A.4 – C.C of judgment in C.C.No.77 of 1998 on the file of IV Additional Judicial First Class Magistrate, Chittoor, the Tribunal held that the lorry driver was responsible for the accident.

(f) Then quantum of compensation is concerned, the Tribunal awarded Rs.1,85,000/- with proportionate costs and simple interest at 9% p.a.

(g) So far as liability is concerned, the Tribunal agreed with the contention of insurance company to the effect that the deceased and others traveled as unauthorized passengers in the offending vehicle which was already carrying Aluminum sheets and Ex.B.1 – policy do not cover the risk of such persons. In this regard, the Tribunal referred the decisions of Hon’ble Apex Court rendered in the cases of 1)New India Assurance Co. Ltd. vs. Asha Rani and others(2002 (8) Supreme 594)and 2) National Insurance Co. Ltd. vs. Baljit Kaur & others(AIR 2004 SC 1340 = 2004 (2) SCC 1)and by following the ratio in the latter decision, held that the risk of gratuitous passengers in a goods vehicle will not be covered by the policies issued in terms of Section 147 of the Amended Act of 1994. Accordingly, the Tribunal held that the 2nd respondent/insurance company is not liable to answer the claim of the claimants and the 1st respondent/ owner alone is liable to pay compensation.

Hence, the appeal by the claimants.

4. Heard arguments of Sri S.V. Muni Reddy, learned counsel for appellants/claimants and Sri V. Sambasiva Rao, learned counsel for respondent No.2. Case against respondent No.1 was dismissed for default on 15.12.2008.

5. (a) Learned counsel for appellants firstly argue