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2015 Supreme(AP) 813
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 Limited - Appellants
Vs.
Rabiya Begum and Ors. - Respondent
M.A.C.M.A. No. 319 of 2009
Decided On : 26-10-2015
For the Appellant :Naresh Byrapaneni, Advocate
For the Respondent:Pottigari Sridhar Reddy, Advocate
Headnote:
Motor Vehicles Act, 1988 – Section 166 – Accident – Death – Compensation granted – Award – Liability of insurance company – When liable – Appeal filed by insurance company-Respondent -2 – R2 contended that the compensation claimed is excessive and thus prayed to dismiss the O.P – Deceased was proceeding in a jee as a passenger along with others when the vehicle reached near Appareddyguda gate the jeep driver drove the same in a rash and negligent manner and thereby jeep turned turtle causing instantaneous death of deceased – It is averred that jeep driver was responsible for accident and due to the sudden demise of deceased, claimants became destitute – Claimants who are wife and children of deceased, filed M.V.O.P. under Section 166 of Act, 1988 against respondent Nos. 1 and 2, who are owner and insurer of jeep and claimed compensation under different heads mentioned in OP – Held, Insurance Company took the plea that policy issued was Act policy and vehicle was hired by the insured to Eenadu daily newspaper against the policy conditions and further, the deceased in the said vehicle travelled as an unauthorized passenger (fare paid passenger) in violation of terms of policy and Insurance Company was not liable – Thus question before Division Bench was whether Insurance Company was liable to pay compensation for passenger who travelled in the jeep which was covered by Act policy – 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 was paid to cover passengers travelled in the jeep and accordingly exonerated the Insurance Company – It is clear that the risk of gratuitous or fare paid passenger in a private vehicle will not be covered under Act policy unless extra premium is paid. In the instant case, the policy is Act policy and no extra premium was paid to extend coverage to deceased who was the passenger but not third party – Insurance Company has to be exempted from its liability – Considering fact that appellant/Insurance Company raises instant contention in appeal for first time and also that dependents of the deceased are large in number and it will be difficult for them to realize compensation from the owner, it is considered apposite to direct Insurance Company to pay compensation and recover the same from the owner – MACMA is allowed (Paras 9 and 10)
U. Durga Prasad Rao, J.
1. Aggrieved by the Award dated 24.03.2008 in MVOP No. 293 of 2006 passed by the Chairman, M.A.C.T-cum- I Additional Chief Judge, City Civil Court, Secunderabad (for short "the Tribunal"), the 2nd respondent/New India Assurance Company preferred the instant appeal. The factual matrix of the case is thus:
"a) On 20.02.2006 at about 4.00 pm when the deceased--Mohd. Muneeruddin was proceeding in a jeep bearing No. ADY 1064 as a passenger along with others from Adikicherla to Hyderabad on Chevella-Hyderabad road and when the vehicle reached near Appareddyguda gate at Moinabad Mandal, the jeep driver drove the same in a rash and negligent manner and thereby the jeep turned turtle causing instantaneous death of deceased. It is averred that jeep driver was responsible for accident and due to the sudden demise of deceased, the claimants became destitutes. On these pleas the claimants who are wife and children of the deceased, filed M.V.O.P. No. 293 of 2006 under Section 166 of Motor Vehicles Act, 1988 (for short "M.V. Act") against respondent Nos. 1 and 2, who are the owner and insurer of the jeep and claimed Rs. 5,00,000/- as compensation under different heads mentioned in OP.
b) R1/countered the petition averments and urged to put the claimants in strict proof of the same. He pleaded the jeep was insured with R2--Insurance Company and it has to indemnify the liability of R1, if any. He contended that claim is highly excessive and exorbitant and thus prayed for dismissal of OP.
c) R2/Insurance Company denied all material averments and urged to put the claimants in strict proof of the same. R2 contended that the compensation claimed is excessive and thus prayed to dismiss the O.P.
d) During trial, PWs. 1 and 2 were examined and Exs. A1 to A7 were marked on behalf of the claimants. On behalf of respondents, R.W. 1 was examined and Exs. B1 to B3 were marked.
e) The Tribunal, on appreciation of oral and documentary evidence, has awarded a sum of Rs. 3,53,000/- with costs and interest at 7.5% p.a under different heads as follows:
Loss of dependency
Rs.3,20,000-00
Loss of Consortium
Rs.15,000-00
Loss of estate
Rs.15,000-00
Funeral expenses
Rs.2,000-00
Transport Charges
Rs.1,000-00
Total
Rs.3,53,000-00
Hence, the appeal by the Insurance Company.
2. Heard arguments of Sri B. Naresh, learned counsel for appellant/Insurance Company and Sri P. Sridhar Reddy, learned counsel for respondents/claimant Nos. 1 to 6. Though notice on R7 was served there is no appearance on his behalf. Hence treated as heard.
3. The parties in this appeal are referred to as they were arrayed before the lower Tribunal.
4. Learned counsel for appellant/Insurance Company impugned the award fastening liability on the Insurance Company on the main argument that the policy though was in force by the date of accident, still it was an Act policy issued treating the crime jeep as a private car and hence R1 was authorised to use it for his private purpose only but contrary to the terms of policy, he carried passengers including the deceased at the time of accident and thus the deceased and others travelled in the vehicle as passengers and since the policy was only an Act policy and no additional premium was paid to extend coverage to the passengers, the Insurance Company is not liable to pay compensation. He thus prayed to allow the appeal and exempt the Insurance Company from its liability. To buttress his argument that the Act policy will not cover the risk of passengers in a private vehicle, he relied upon the Division Bench Judgment of this High Court reported in Branch Manager, United India Insurance Company Limited, Kamareddy v. Kondakotla Saroja, 2008 (5) ALT 246 : 2008 (2) An.W.R. 314 (D.B.) (A.P.) : 2008 (5) ALD 288 (DB).
5. Per contra, opposing the appeal, learned counsel for respondents 1 to 6/claimants
