MACMA/3775/2011 of The United India Insurance Company Limited Vs Bheema Lingappa , Bheemalinga on 30 December 2011

COMMON JUDGMENT:

All these appeals arise out of the common accident. The appeals arefiled by the Insurance Company against the awards in O.P.No.244, 245, 252,246 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-IVAdditional District Judge (Fast Track Court) at Anantapur, questioning theliability.

2. Parties are referred to as arrayed in the lower Tribunal.

3. According to the case of the petitioners, on 13.07.1995 when thepetitioners were travelling in the bus bearing No.AP 02 T 2248 and reachednear Urabanda village, the driver of the bus drove it in a rash and negligentmanner, as a result of which, the bus turned turtle and the petitionerssustained multiple injuries. It is said that there are about 32 passengers, whotravelled in the bus, sustained injuries. R.1 remained ex parte in all theO.Ps., and the appellant herein, filed common counter contending that twopersons died. It is contended by the Insurance Company, who is theappellant herein that there is a violation of the conditions of the policy ofinsurance and the policy was taken as stage carrier, but it was of hire andthere was also overcrowding and consequently, the Insurance Company isnot liable to pay the compensation. The lower Tribunal after considering theevidence on record did not accept the contention of the Insurance Companyand granted the compensation as shown below:

Aggrieved by the said awards, the present appeals are filed.

4. The point that is common in all the appeals, which arises forconsideration is whether the Insurance Company is not liable to pay thecompensation?

5. POINT:

The learned counsel for the appellant contends that the bus was over-loaded and there were about 30 persons on the top of the bus andconsequently, the liability of the Insurance Company is not there as there isviolation of the conditions of the policy. The learned counsel for theappellant does not dispute the fact that the policy covers the risk of 48persons travelling in the bus. That being so, the total claims against theappellant are only ‘9’ and there are no other claims. Therefore, in view of theabove circumstances, the contention that the vehicle was overloaded and theInsurance Company is not liable to pay the compensation cannot beaccepted.

6. So far as the contention of the appellant that the policy was taken as astage carrier and that the vehicle was used for hire is concerned, evidence ofRW.1 is sought to be relied upon. Evidently, the fact that the vehicle wasintended for use of transport of the passengers is not in dispute. It is to benoted that the bus, which is said to have been involved in the accident, wasused for taking the marriage party as passengers in the bus. The hirecharges are quite different from paying the charges for use of the bus, inwhich passengers were taken as a group of marriage party. In fact, there isnothing on record to show that the owner of the bus has given it on hire ascontended by the Insurance Company. Hire and payment of the charges fortravelling have got very little distinction. Except the interested evidence ofRW.1, which is not supported by any other material, there is no proof of hire. In view of the incident having been occurred in 1995 and awards beingpassed in 2005 and taking into consideration the quantum of compensationgranted by the Tribunal below, I think it is not a matter, where-under a question of fact or law is involved and this Court can interfere. However, theappellant is at liberty to recover the amounts from the owner of the vehicle.

In view of the above circumstances, all the appeals are dismissed. There shall be no order as to costs.

Date:30.12.2011INL

_______________________________JUSTICE N.R.L. NAGESWARA RAO