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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
U. Durga Prasad Rao, J.
New India Assurance Company Ltd. - Appellant
Vs.
Korrapolu Danaiah and Ors. - Respondents
M.A.C.M.A. No. 347 of 2009
Decided On: 11.08.2015
Motor Vehicle Act – Section 147(2) - Accident claim – Grant of compensation – Liability of insurance company – Challenged – Accident due to fault of both drivers - Liability is concerned, it observed that jeep was sold to R1 after obtaining policy and it was in force by the date of accident and so, R1 and R2 were liable. R3 is concerned, it held R3 failed to establish that he sold away his vehicle and he was not the owner of the lorry by the date of accident - Thus, it fixed liability on all the three respondents and awarded compensation with costs and interest – Respondent Insurance Company contended that lorry driver was responsible for the accident which is evident from the crime record and hence, it cannot be held responsible. It further contended that the name of first respondent is shown in the claim petition, whereas in the policy it is mentioned is not liable to pay compensation – Involvement of jeep bearing and death of the deceased are admitted facts. The Tribunal having regard to the evidence on record and on the observation that in a claim under Section 163-A of MV Act the negligence of a particular driver is not relevant and the respondents too did not adduce any positive evidence showing a particular driver of the opposite vehicle alone was responsible as pleaded by them, has held that the accident was occurred on account of use of both the vehicles. It must be said the above observation of the Tribunal is correct – Held, Division Bench judgment of this Court in case, to know whether it helps the contention of Insurance Company that the policy will not cover the risk of a passenger in the jeep. In that case the deceased travelled in a jeep, met with accident and died when the jeep turned turtle on the way. Against the claim petition, the Insurance Company took the plea that the policy issued was Act policy and the vehicle involved in the accident was hired to daily newspaper against the policy condition and the deceased travelled in the said vehicle as an in violation of the policy – In that context, the Division Bench examined Ex.A5 policy and found that it was an Act only policy and columns additional risks if any covered and special conditions if any were kept blank indicating that no extra premium has been paid to cover the passengers travelled in the jeep and accordingly exonerated the Insurance Company. It must be noted that in that case the facts would show the jeep in question was a private vehicle unlike in the present case where the jeep is public service vehicle and the said jeep was hired to daily newspaper against the policy conditions and further, the deceased travelled therein as an fare paid passenger. It is clear that Section 147(2) of MV Act will not cover the risk of fare paid passengers in a private vehicle unless extra premium is paid. So, by facts, the said decision can be distinguished – Insurance Company is dismissed.
U. Durga Prasad Rao, J.
1. The New India Assurance Company Limited who is the second respondent in MVOP No. 144 of 2008, challenged the award passed by MACT, Markapur questioning the liability fastened on it.
2. Brief facts of the case are that:
a) On 03-05-2003 the deceased Korrapolu Chinna Mark and some others engaged a jeep bearing No. AP 07 X 4480 to go to Ongole for attending APRJC Entrance Examination, but on the way a lorry bearing No. AA D 2877 came in opposite direction and accident took place due to collision between two vehicles resulting in death of six persons including Chinna Mark and injuries to some others.
b) The claimants who are the parents of deceased, filed MVOP No. 144 of 2008 under Section 163-A of Motor Vehicles Act, 1988 (for short MV Act) against respondent Nos. 1and 2, who are the owner and insurer of the jeep respectively and respondent No. 3 who is the owner of the lorry and claimed Rs. 2,30,000/- as compensation.
c) Respondent No. 1/owner of the jeep mainly contended that accident was occurred due to fault of driver of the lorry and hence he is not liable to pay compensation and even otherwise, he insured his jeep with R2/Insurance Company and hence, R2 has to indemnify the liability of R1 if any.
d) Respondent No. 2/Insurance Company contended that lorry driver was responsible for the accident which is evident from the crime record and hence, it cannot be held responsible. It further contended that the name of first respondent is shown as K. Kalebu S/o Gangaiah (kesim) in the claim petition, whereas in the policy it is mentioned differently as Shaik Rasheed, S/o Khasim, R/o Baptla and so, R2 is not liable to pay compensation.
e) Respondent No. 3/owner of lorry in his counter contended that he is not the owner of the lorry and he sold away his vehicle on 17.10.2002 to one K. Parameswara Reddy and he is not answerable to the claim.
f) During trial, PW1 was examined and Exs.A1 to A6 were marked on behalf of claimants. RWs.1 and 2 were examined and Ex.B1 policy was marked on behalf of respondents.
g) On appreciation of both oral and documentary evidence the Tribunal so far as fault is concerned, held that drivers of both the vehicles were at fault. Liability is concerned, it observed that jeep was sold to R1 after obtaining policy and it was in force by the date of accident and so, R1 and R2 were liable. R3 is concerned, it held R3 failed to establish that he sold away his vehicle and he was not the owner of the lorry by the date of accident. Thus, it fixed liability on all the three respondents and awarded compensation of Rs. 2,29,500/- with costs and interest at 8% p.a.
Hence, the appeal by the Insurance Company.
3. The parties in this appeal are referred as they stood before the Tribunal.
4. Heard arguments of Sri Naresh Byrapaneni, learned counsel for appellant/Insurance Company and Sri N. Krishna Murthy, learned counsel for respondents 1 and 2. Notices sent to R3 and R4/owners of jeep and lorry were served but there is no representation on their behalf hence, treated as heard.
5. The argument of learned counsel for appellant/Insurance is three fold:
a) The Tribunal having observed the drivers of both the vehicles are responsible ought to have apportioned liability to facilitate owner of each vehicle to pay compensation accordingly.
b) Ex.B1 policy is an act only policy and it will not cover the liability of passenger in the jeep since no extra premium is paid. The Tribunal thus erred in fastening liability on it.
c) It being a claim under Section 163-A of MV Act, following the Second Schedule therein, the Tribunal should have taken gross notional annual income of the deceased at Rs. 15,000/- but instead, it took the net annual income at Rs. 15,000/-.
6.a) Per contra, learned counsel for respondents/claimants firstly argued since the accident was occurred due to composite negligence of both vehicles, the claimants are entitled to lay claim against both or any of the vehicles and Tribunal also can award co
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