MACMA/77/2011 of Kudiri Lakshmi Prasanthi Vs V.Harinatha Reddy on 30 December 2013

JUDGMENT:

The claimants, who are no other than wife, minor child andparents of deceased K.Chengaiah, filed this appeal having beenaggrieved by the Order/Award of the learned Chairman of the MotorAccidents Claims Tribunal–cum-III Additional District Judge, Nellore(for short, ’Tribunal’) in M.V.O.P.No.466 of 2008 dated 17.08.2010,awarding compensation of Rs.2,95,100/-(Rupees Two lakhs ninetyfive thousand and one hundred only) with interest at 7.5% per annumwith the finding that the 1[st] respondent liable to pay the compensationby exonerating the 2[nd] respondent-insured as against the claim of theclaimants of Rs.3,00,000/-(Rupees three lakhs only), in the claimpetition under Section 166 of the Motor Vehicle Act, 1988 (for short,‘the Act’).

2. Heard Sri G.Venkateswarlu, the learned counsel for theappellants-claimants and Sri B.Devanand, learned counsel for the 2[nd]respondent. The 1[st] respondent served with notice called absent withno representation and thus taken as heard for his absence to decideon merits and perused the record. The parties hereinafter are referredto as arrayed before the Tribunal for the sake of convenience in theappeal.

3. The contentions in the grounds of appeal in nutshell are thatthe award of the Tribunal is contrary to law, weight of evidence andprobabilities of the case, that the Tribunal went wrong in notconsidering the factum of the deceased is one of the coolies forloading and unloading purposes and in the policy, there is a premiumof Rs.25/- paid for such coolie and thereby both the insured andinsurer are liable to pay compensation hence to set aside the award ofthe Tribunal exonerating the insurer and pass the award as prayed for allowing the appeal. Whereas, it is the contention of the contesting 2[nd]respondent insurer to the appeal that the award of the Tribunal is wellconsidered and on merits and for this Court while sitting in appeal,there is nothing to interfere with said findings, hence to dismiss theappeal by saying that there is no premium paid to any coolies toengage for loading and unloading and the deceased among otherseven as per F.I.R were mid way unauthorized passengers traveled inthe trailer and thereby the insurer is not liable hence to dismiss theappeal.

4. Now the points that arise for consideration in the appeal are:

1. Whether the insurer is liable to indemnify the insured tosatisfy the claim by virtue of Ex.B-1 policy for the death of thedeceased while traveling in the trailer of the tractor with theclaim as coolie?satisfy the claim by virtue of Ex.B-1 policy for the death of thedeceased while traveling in the trailer of the tractor with theclaim as coolie?

2. To what result?

POINT No.1:

5. The fact that are proved before the Tribunal that on08.11.2006 the deceased along with others were traveling in thetractor trailer bearing registration No. AP 26 P 2993 and AP 26 P 2994and when the said vehicle reached between SLP-3 zero point atSriharikota, Nellore, then the driver of the crime vehicle drove thesame in a rash and negligent manner and as a result of which thetrailer detached from the tractor and the same fell aside and the coolieswere fell on the ground for which the deceased died on 10.11.2006 inthe hospital during the treatment. The claimants who are no other thanwife, minor child and parents of the deceased K.Chengaiah who filedthe claim petition in O.P. No.466 of 2008 claiming Rs.3,00,000/- ascompensation against the owner of the crime tractor bearing No.AP 26P 2993 propelled with the trailer bearing No.AP 26 P 2994, insuredwith the 2[nd] respondent-New India Assurance Company Limitedcovered by Ex.B-1 policy.

6. The fact that the accident was the result of the rash andnegligent driving of the driver of the tractor propelled with trailer isproved from the evidence of P.Ws 1 and 2 of whom P.W-2 is no otherthan brother-in-law by courtesy to the deceased even according to hisevidence and the eye witness also traveling in the same tractor andtrailer as a co-coolie with the deceased and it is he set the law intomotion by giving F.I.R that was also admitted by him in his evidence. Now, the important aspect is that whether the policy covers the risk ofthe deceased with the claim as a coolie and in what capacity thedeceased among others were traveling in the trailer of the tractor. Aperusal of Ex.B-1 policy shows that additional premium of Rs.25/-collected in addition to personal accident claim risk coverage forowner-cum-driver or owner engaged driver and there is no otherprovision for any coolie to travel but for on trailer if at all in case of acommercial use vehicle as attendant of the goods and for anagricultural purpose vehicle as a coolie. The fact that Rs.25/-additionally collected as an additional premium to cover risk to oneemployee or workman on behalf of the owner when covered by Ex.B-1policy that is also admitted by R.W-1, the employee of the insurer, theinsured cannot deny that an additional premium collected for oneperson engaged to proceed on the trailer. Now, if really he is engagedby the owner either as attendant of the goods or as a coolie, it coversthe risk. However, the fact remains as P.W-2 also admitted who is noother than the villager and close relative of the deceased and eyewitness and the person traveled along with the deceased about hisgiving of report to the police Ex.A-1 F.I.R, where he clearly mentionedthat they were working as coolies and after completion of coolie workthey were while waiting at road side they stopped the tractor andboarded the same and traveled. It crystallizes the fact that they werenot coolies engaged though their main avocation was coolies and theyare no other than mid way passengers unauthorized had it beenproved, no doubt F.I.R is not the basis, but for evidence produced

before the Tribunal that is the basis. The person who set the law intomotion, P.W-2 who is relative of deceased admittedly, also travelingalong with the deceased. He deposed the same in his evidence let inby the claimants. There is no explanation in his chief-examination asto what made him to make such mention of midway passengers had itbeen not the truth. Otherwise he could say in the report as a coolie andin evidence with explanation of not one of the unauthorizedpassengers, but for coolies. Apart from it in the cross-examination, hecategorically deposed that he has given the report with said factum. When such is the case, mere assertion in the claim petition at para-26that he is one of the coolies no way rebut the same. Further, the ownerof the crime vehicle that has to be examined to rebut the same also notexamined to speak if he really engaged the deceased as coolie. P.W-2 having come to witness box has to explain as to what prevents himto give explanation basing on his status as eye witness and also aperson who traveled along with the deceased. The evidence broughton record is thus proved the fact that deceased was not traveled on thetrailer propelled to the tractor as a coolie to cover the risk under thepolicy but for as unauthorized passenger. In appreciation of evidencewhen the entire material is at large, irrespective of who let in theevidence and from above evidence disclosed that he wasunauthorized midway passenger and not a coolie; there is nothing tointerfere with said finding of the Tribunal in saying that the deceasedwas not a coolie. No doubt, the Tribunal erred in saying for a coolie,risk not covered since Rs.25/- additionally paid as discussed supra. However, even from the fact remains that Rs.25/- to cover the risk to acoolie does not cover the unauthorized mid way passenger on a trailerpropelled to the tractor. Having regard to the above, for this Courtwhile sitting in appeal against the award of the Tribunal from theevidence of record, there is nothing to interfere. Accordingly, pointNo.1 is answered.

POINT No.2:

7. In the result, the appeal is dismissed with any costs.

8. Miscellaneous petitions, if any, in this appeal shall stand closed.

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Dr. B. SIVA SANKARA RAO, J

Date: 30-12-2013ksh