MACMA/3550/2011 of The National Insurance Company Ltd Vs Gunturu Rama Koteswara Rao on 30 December 2011

COMMON JUDGMENT:

All the appeals arise out of a common accident occurred on 03.11.2001.

2. According to the case of the petitioners, on 03.11.2001 the 1[st] respondent inM.A.C.M.A.No.3550 of 2011 and the wife, and two sons of the 1[st] respondent inM.A.C.M.A.Nos.1940 of 2005, 488 of 2011 and MACMA (SR) No.11510 of 2005were travelling in the lorry bearing No.AP 16 U 8116 along with others and whenthe lorry reached the outskirts of S.M.Pet village, the driver of the lorry appliedsudden brakes, due to which the iron roller, which was in the lorry, rushed into thecabin and consequently, occupants of the lorry received injuries and threepersons died. The 1[st] respondent is owner of the vehicle and the 2[nd] respondentis Insurance Company, who has challenged the award. The appellant contendedthat the injured persons and deceased are gratuitous passengers in a goodsvehicle and consequently, they cannot be held liable. Reliance is also placed onthe fact that midway boarding of the lorry cannot be taken into consideration. Thelower Tribunal did not accept the said contention and passed the awards asshown below holding that the appellant is liable to pay the compensation.

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

3. The point for consideration is whether the appellant is not liable to pay the compensation awarded by the lower Tribunal?

4. POINT:

So far as the nature of the incident and insurance of the vehicle areconcerned, there is not of much dispute. There is also no dispute about the factthat the vehicle is a goods vehicle and the injured and the deceased personshave boarded the lorry to go to Vijayaraghavapur and the petitioner in MACMANo.3550 of 2011 has boarded the lorry to go to Suryapet and therefore, they havenothing to do with the goods that have been carried in the lorry and the purposefor which the lorry was engaged. But, however, the lower Tribunal relying on thedecision reported in Natinal Insurance Company Limited Vs. Baljit Kaur andothers (2004(1) ALD 98 (SC) and other case held that ‘any person’ includes thethird parties travelling in the goods vehicle and consequently, the appellant isliable to pay the compensation. The above view of the lower Tribunal is notcorrect in view of the judgment of the Supreme Courti n New India Assurance Company Vs.Asha Rani[[1]].

5. Therefore, in view of the above circumstances, the award of the lowerTribunal so far as it makes liability of the appellant is concerned, is liable to be setaside and the claimants have to proceed against the owner of the vehicle. However, as per the directions of this Court, the appellant has deposited half ofthe awarded amounts if that amounts are not withdrawn, the appellant is at libertyto apply for refund of the same. If the amounts are withdrawn, the appellant shallproceed against owner of the vehicle for recovery of the amount and for thebalance of compensation, the claimants shall proceed against the owner of thevehicle.

Accordingly, the all appeals are allowed. No costs.

Date:30.12.2011INL

_______________________________

JUSTICE N.R.L. NAGESWARA RAO

[1]2003(1) ACJ 1