M.V.Act - allowing the deceased to travel in the goods vehicle as a gratuitous/unauthorized passenger is concerned, learned counsel argued the Tribunal has not at all answered this issue and ultimately held that Insurance Company is liable. She thus prayed to allow the appeal and exonerate the Insurance Company from its liability.= Then, coming to second violation admittedly, the vehicle in question is a goods carriage vehicle and the deceased boarded on it as a midway unauthorized passenger. A perusal of Ex.B1policy shows that no premium was paid by R1 to give coverage to gratuitous/unauthorized passengers in the goods carriage vehicle. Under Section 147 of MV Act the risk of unauthorized/gratuitous passengers need not be covered unless extra premium is paid. The Apex Court clarified this fact in the case of New India Assurance Co. Ltd. v. Asha Rani which was followed in subsequent decisions also. By this fact also the Insurance Company cannot be fastened with liability. Unfortunately, the Tribunal has not addressed this issue. So, I find considerable force in the contention of learned counsel for appellant/Insurance Company. 9) In the result: a) This MACMA filed by the Insurance Company is allowed and the appellant/Insurance Company is exempted from its liability and it is directed that the first respondent/insured shall pay the compensation to the claimants as awarded by the Tribunal. b) If, pending appeal, the Insurance Company paid any compensation, it shall recover the same from the first respondent/insured. c) No costs in the appeal. As a sequel, miscellaneous petitions pending, if any, shall stand closed.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

MACMA No.1198 of 2009  

12-08-2015

National Insurance Company Limited, rep. by its Divisional manager,
Visakhapatnam.... Appellant
       
Chintapalli Ankayamma and others  Respondents  

Counsel for Appellant : Smt. SAV Ratnam

Counsel for Respondents 1 to 3   : Sri T.Nageswara Rao
Counsel for respondents 6 & 7 : Sri C.Appaiah Sharma

<Gist:

>Head Note:

?Cases referred:
1)2008 ACJ 721 (SC)
2)2003 ACJ 1 (SC)

THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO            

M.A.C.M.A.No.1198 of 2009

JUDGMENT:  
        Aggrieved by the Award dated 10.10.2008 in M.V.O.P.No.450 of
2005 passed by the Chairman, MACT-cum-District Judge, Vizianagaram  
(for short the Tribunal), the 2nd respondent in the OP preferred the instant
appeal.
2)      The factual matrix of the case is thus:
a)      The case of the claimants is that on 04.09.2004 when the deceased
Appala Naidu boarded van bearing No.AP 31 W 9210 at 12 noon at Kosta  
village junction to go to Golgam village and when it reached near
Poosapatirega village at about 1.45 PM, the van driver drove the same in a
rash and negligent manner and at high speed and dashed against the
opposite coming RTC bus bearing No.AP 11Z 962 and thereby, the
deceased received bleeding injuries all over the body.  Immediately he was
shifted to Government Hospital, Vizianagaram where he succumbed to
injuries on the same day at about 8.20 PM. It is averred that the accident
was occurred due to the fault of drivers of both the vehicles. On these
pleas, the claimants filed M.V.O.P.No.450 of 2005 under Section 166 of
Motor Vehicles Act (for short MV Act) and claimed Rs.4,00,000/- as
compensation against respondents 1 and 2, who are the owner and insurer
of van and respondents 3 to 5driver and  APSRTC.
b)      R3/driver of RTC bus remained ex-parte.
c)      R1/owner-cum-driver of the van filed counter denying all the
material allegations made in the claim petition and urged to put the
claimants to strict proof of the same. He submitted that there is no fault on
his part and he was driving the van on the extreme left side of the road and
bus driver suddenly turned the bus to the right side without blowing horn
and caused the accident. He also submitted that as the vehicle in question
was insured with R2/Insurance Company, it is liable to pay the
compensation.
d)      R2/Insurance Company filed counter and opposed the claim denying
all the material averments made in the petition. R2 disowned its liability on
the ground that driver of the van was not having valid and effective driving
licence on the date of accident and that the vehicle was used violating the
terms of policy and compensation claimed was highly excessive and
exorbitant and thus prayed to dismiss the O.P.
e)      R5APSRTC filed its counter contending that driver of the bus was
not at fault and van driver drove the vehicle in a rash and negligent manner
and at high speed and without following traffic rules came and hit the
stationed bus on the front portion and caused the accident and hence van
driver was at fault.
f)      R4 filed a memo adopting the counter of R5.
g)      During trial, PWs.1 and 2 were examined and Exs.A1 to A5 were
marked on behalf of claimants. RWs.1 and 2 were examined and Exs.B1 to  
B4 were marked on behalf of respondents.
h)      The Tribunal considering the oral and documentary evidence held
that driver of the offending van was responsible for the accident.
Compensation is concerned, the Tribunal awarded Rs.82,000/- with
proportionate costs and interest at 9% p.a. against R1 and R2, who are the
owner and insurer of offending van and dismissed the claim against
respondents 3 to 5, as below:
     Loss of dependency                     Rs.     80,000-00
     Funeral expenses                           Rs.      2,000-00
                                                                 ---------------------
                                  Total:                     Rs.     82,000-00
                                                           ---------------------
     Hence, the appeal by Insurance Company.
3)      The parties in this appeal are referred as they stood before the
Tribunal.
4)      Heard arguments of Smt. SAV Ratnam, learned counsel for
appellant/Insurance Company; Sri Taddi Nageswara Rao, learned counsel
for respondents 1 to 3/claimants and Sri C.Appaiah Sharma, learned
counsel for R6 and R7/APSRTC.  Notice sent to R4/owner of the van was
served but no representation hence, treated as heard. R5/driver of RTC bus
was not necessary party as per cause title.
5)      Fulminating the award fixing liability on the Insurance Company,
learned counsel for appellant/Insurance Company vehemently argued that
in this case the first respondent who is the owner-cum-driver of the van,
has committed two severe violations of terms of policy inasmuch as he
himself drove the van without having a valid and effective driving licence
and further, he allowed the deceased to travel in the van which is a goods
carriage vehicle as a gratuitous passenger therein and in view of gross
infraction of terms of policy, the Tribunal ought to have exonerated the
Insurance Company from its liability.  However, the Tribunal committed
grave mistake in appreciation of facts and law.
a)      The first violation touching the driving licence issue is concerned,
the Tribunal misread the judgment of the Honourable Apex Court in
National Insurance Company Limited v. Annappa Irappa Nesaria  and
held as if the first respondent had valid driving licence to drive the van in
question. She argued that the vehicle in question is a goods carriage vehicle
which is a transport vehicle, whereas R1 had licence to drive only Light
Motor Vehicle (non-transport) driving licence during the relevant period
and he was not authorized to drive the transport vehicle like the crime
vehicle.
b)      The second violation i.e. allowing the deceased to travel in the goods
vehicle as a gratuitous/unauthorized passenger is concerned, learned
counsel argued the Tribunal has not at all answered this issue and
ultimately held that Insurance Company is liable.  She thus prayed to allow
the appeal and exonerate the Insurance Company from its liability.
6)      Per contra, learned counsel for respondents 1 to 3/claimants
supported the award and prayed for dismissal of appeal.
7)      In the light of above rival arguments, the point for determination in
this appeal is:
Whether the Tribunal erred in fastening liability on the
appellant/Insurance Company?
8a) POINT:   On a careful perusal of oral and documentary evidence on
record, I find justification in the argument of learned counsel for
appellant/Insurance Company. The contention of Insurance Company as
can be seen from its counter and evidence of RW1 is two fold.  Firstly that
R1 who is the owner-cum-driver of the vehicle had no valid and effective
driving licence to drive the crime van which is a goods carriage vehicle and
secondly that he allowed the deceased to travel in the goods vehicle as an
unauthorised/gratuitous passenger in violation of terms of the policy.
b)      Be that it may, a perusal of the award shows that the Tribunal basing
on the judgment of the Apex Court in Annappa Irappa Nesarias case
(1 supra) opined that the driver who had a valid licence to drive Light
Motor Vehicle is authorized to drive goods vehicle as well therefore, R1
had valid and effective driving licence at the relevant time. I am
constrained to say this finding is incorrect on the face of the facts and law.
Ex.B2RC extract of crime van bearing No.AP 31 W 9210 shows that it is
a goods carriage Medium Motor Vehicle since its gross weight is 8,800
Kgs. Ex.B3permit of the vehicle also reveals the same facts. Then
Ex.B4driving licence extract of R1 viz. P.Satyanarayana shows he was
authorized to drive the following vehicles:
      LMV                                  Non-Transport
             01.10.2003
                MCWG                    Non-Transport                   01.10.2003        
       LMV                      Transport                       21.02.2005
        So, as on the date of accident he was holding driving licence to drive
LMV of non-transport type whereas the vehicle in question is a Medium
Motor Vehicle and it was a goods carrying vehicle i.e. transport vehicle.  It
is, in this context, useful to refer SO 1248(E) dated 05.11.2004 whereunder
the Central Government classified the transport and non-transport vehicles
as per which, goods carrier trucks, tankers, mail carriers (N1N3
category) are regarded as transport vehicles. So, the evidence on record
clearly depicts that the vehicle is a Medium Motor Vehicle and a transport
vehicle, whereas the driver had driving licence to drive a Light Motor
Vehicle of non-transport type. Hence, he had no effective driving licence to
drive the type of vehicle involved in the accident.
c)      Coming to the judgment of Apex Court in Annappa Irappa
Nesarias case (1 supra) what was observed by the Apex Court in that
decision is that a Light Motor Vehicle takes within its umbrage, both a
transport vehicle and a non-transport vehicle. It further observed that a
driver who had valid driving licence to drive a Light Motor Vehicle,
therefore, was authorized to drive a light goods vehicle as well.  Thus, the
observation of Honourable Apex Court is that a Light Motor Vehicle
includes both a transport and a non-transport vehicle. There is no demur in
it. In that case, it appears, the driving licence of the concerned driver only
revealed as Light Motor Vehicle without further confining the said driving
licence to either transport or non-transport type of vehicles. Since a Light
Motor Vehicle includes both transport and non-transport type vehicles, it
was held he was having valid driving licence in that case.  However, in the
instant case the facts are different. R1driver authorized to drive Light
Motor Vehicle but his licence is confined to non-transport type of vehicles
only. So, at the first instance, he cannot take advantage from the above
judgment of Apex Court. Further, the vehicle involved in this case is a
Medium Motor Vehicle but not a Light Motor Vehicle. On that ground also
it must be said that R1 was not holding effective driving licence. So, in any
view of the matter, the Tribunal was not right in holding that R1 had valid
driving licence.
d)      Then, coming to second violation admittedly, the vehicle in question
is a goods carriage vehicle and the deceased boarded on it as a midway
unauthorized passenger. A perusal of Ex.B1policy shows that no
premium was paid by R1 to give coverage to gratuitous/unauthorized
passengers in the goods carriage vehicle. Under Section 147 of MV Act the
risk of unauthorized/gratuitous passengers need not be covered unless extra
premium is paid. The Apex Court clarified this fact in the case of New
India Assurance Co. Ltd. v. Asha Rani  which was followed in subsequent
decisions also. By this fact also the Insurance Company cannot be fastened
with liability. Unfortunately, the Tribunal has not addressed this issue. So, I
find considerable force in the contention of learned counsel for
appellant/Insurance Company.

9)      In the result:
a)      This MACMA filed by the Insurance Company is
allowed and the appellant/Insurance Company is exempted
from its liability and it is directed that the first
respondent/insured shall pay the compensation to the
claimants as awarded by the Tribunal.
b)      If, pending appeal, the Insurance Company paid any
compensation, it shall recover the same from the first
respondent/insured.
c)      No costs in the appeal.
     As a sequel, miscellaneous petitions pending, if any, shall stand
closed.
_________________________  
U.DURGA PRASAD RAO, J    
Date: 12.08.2015