M.V.Act - Liability if Insurance Company - Ex.B1policy copy would show that owner of the crime vehicle paid premium to give coverage to non-paid passengers i.e. owner of the goods. Therefore, it is clear that risk of deceased was squarely covered under the terms of Ex.B1policy. The Tribunal rightly held that the deceased was owner of the goods but not as passenger.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A No.616 of 2009

01-12-2014

United India Insurance Company Limited Rep. by its Divisional Manager,
Anantapur..... Appellant
       
Thammineni Ramachandraiah and others. Respondents    

Counsel for Appellant: Sri E. Venugopal Reddy

Counsel for Respondent Nos.1 & 2: Sri K. Maheswara Rao

<Gist:

>Head Note:

? Cases referred:

THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO            
M.A.C.M.A. No.616  of 2009

JUDGMENT:  
        Challenging the Award dated 09.02.2005 in O.P.No.40 of 2001 passed
by the Chairman, M.A.C.T-cum-IV Additional District Judge, (FTC),
Anantapur (for short the Tribunal), the appellant/ United India Insurance
Company Limited preferred the instant MACMA.
2)      On factual side, the case of the claimants is that on 26.10.2000, when
the deceasedThammineni Mallikarjuna was travelling from Nizamabad to
Kesepalli village along with paddy harvester in the Van bearing No.AP 02 T
7110 the driver drove the vehicle in a rash and negligent manner without
observing the electric wires and one of the wires touched the deceased and
he received electric shock and died on the spot. It was averred that van
driver was responsible for the accident and due to sudden death of the
deceased the claimants who are his dependants became destitutes. On these
pleas, the claimants, who are parents of the deceased filed O.P No.40 of
2001 against respondents 1 and 2, who are the owner and insurer of the
offending van and claimed Rs.2,00,000/- as compensation.
a)      Respondent No.1 remained ex parte.
b)      Respondent No.2/Insurance Company filed counter contending that
there was no rash and negligent driving on the part of driver of crime vehicle
and deceased himself was negligent and contributed to the accident. R2 also
contended that deceased travelled as passenger and policy will not cover the
risk of passenger. R2 further contended that driver had no valid driving
licence at the time of accident. Finally, contending that claim is excessive
and untenable, R2 prayed to dismiss the OP.
c)      During trial, PWs.1 and 2 were examined and Exs.A1 to A13 were
marked on behalf of claimants. Policy copy filed by 2nd respondent was
marked as Ex.B.1.
d)      The Tribunal after considering the evidence on record awarded total
compensation of Rs.2,00,000/- with proportionate costs and interest at 6%
p.a from the date of O.P till the date of realization.
        Hence, the appeal by the Insurance Company.
3)      The parties in the appeal are referred as they stood before the
Tribunal.
4)      Heard Sri E.Venugopal Reddy, learned counsel for appellant/
Insurance Company and Sri K.Maheswara Rao, learned counsel for  
respondents 1 and 2/ claimants. R3 is not necessary as per cause title.
5)      The main ground on which learned counsel for appellant challenged
the award is that deceased travelled in the goods vehicle only as a passenger
and hence his risk will not be covered under the terms of the policy, but
Tribunal on an erroneous appreciation of facts and evidence held as if he
travelled in the vehicle as owner of the goods and thereby fastened liability
on the Insurance Company along with owner of the vehicle. He thus prayed
to allow the appeal and exonerate the Insurance Company from liability.
6)      Per contra, while supporting the award, learned counsel for
respondents 1 and 2/ claimants argued that the deceased and his family owns
paddy harvester which the deceased brought to Nizamabad during harvesting
season and he engaged the crime towing van to transport the harvester and
he sat on the harvesting machine and travelled as owner of the goods and on
the way, due to a live wire touching the harvester, he got electrocuted and
died.  Learned counsel vehemently argued that deceased thus was not an
unauthorised or gratuitous passenger, but owner of the harvester and hence,
his risk squarely covered under the terms of Ex.B1policy and the Tribunal
rightly held so. He thus prayed to dismiss the appeal.
7)      In the light of above arguments, the point for determination in this
appeal is:
Whether the award passed by the Tribunal is factually and legally
sustainable?
8) POINT: Accident, involvement of crime vehicle bearing No. No.AP 02 T
7110 and death of the deceased are not in dispute. The point is whether the
deceased travelled in the harvester as a mere passenger or owner of the
goods.
a)      In this regard, the evidence of PW1 who is the father of the deceased
is to the effect that his son besides doing cloth business, was running paddy
harvester and during October, 2000 he took his harvester to Nizamabad
District, since it was paddy harvesting season and on 26.10.2000 he engaged
the crime van for transporting paddy harvester from Nizamabad to Kesepally
and on the way driver of the van drove the vehicle in a rash and negligent
manner and without observing the electric wire hanging across the road and
thereby live wires in the outskirts of Kesepally village touched the said
paddy harvester and his son who was sitting in the harvester was
electrocuted and died on the spot.
b)      It may be noted that in the cross-examination of PW1 counsel for
Insurance Company has not at all suggested that the deceases family was
not owning harvester and the said harvester was not brought to Nizamabad
District during the relevant period and further that the deceased had not
engaged the crime vehicle to tow the harvester from Nizamabad to
Kesepally. On the other hand, it was suggested that accident was occurred
due to negligence of the deceased himself and the said suggestion was
denied by PW1. So, tenor of cross-examination of PW1 would give an
inference that Insurance Company did not dispute that deceaseds family
owned harvester which was being carried by the deceased to Kesepally
village for attending harvesting before accident.  Hence, it is clear that
deceased travelled on the paddy harvester as its owner. Since the crime
vehicle i.e. towing van was towing the harvester at the relevant time of
accident, the deceased can be referred as owner of the goods with reference
to crime van also. Ex.B1policy copy would show that owner of the crime
vehicle paid premium to give coverage to non-paid passengers i.e. owner of
the goods. Therefore, it is clear that risk of deceased was squarely covered
under the terms of Ex.B1policy. The Tribunal rightly held that the
deceased was owner of the goods but not as passenger.  In view of above
discussion, the contention of learned counsel for appellant/Insurance
Company cannot be accepted.  
9)      Accordingly, this MACMA is dismissed by confirming the award
passed by the Tribunal in O.P.No.40 of 2001. No costs in the appeal.
     As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_______________________  
U.DURGA PRASAD RAO, J    
Date: 01.12.2014