MACMA/2802/2013 of THE UNITED INDIA INSURANCE COMPANY LIMITED Vs VENNAPUSA SWAPNA AND 4 OTHERS on 30 December 2022

JUDGMENT:

1. Aggrieved by the order dated 29.10.2012 in MVOP No.426 of 2010 passed by the Chairman, Motor Accidents Claims Tribunal-cum- Judge Family Court-Cum-Additional District Judge, Anantapur (for short 'the Tribunal'), the 2nd respondent/United Indian Insurance Company Limited, Ananthapur, has preferred this appeal fastening liability on it. 2010 passed by the Chairman, Motor Accidents Claims Tribunal-cum- Judge Family Court-Cum-Additional District Judge, Anantapur (for short 'the Tribunal'), the 2nd respondent/United Indian Insurance Company Limited, Ananthapur, has preferred this appeal fastening liability on it.

2. The parties will be referred to as arrayed in the MV OP for convenience. convenience.

3. The petitioners filed the claim application under Sections 140 and 166 of the Motor Vehicles Act requesting to award compensation of Rs.5,00,000/- for causing the death of Vennapusa Ramesh Reddy (hereinafter referred to as 'deceased'), who died in the Motor Vehicle Accident on 18.02.2010. and 166 of the Motor Vehicles Act requesting to award compensation of Rs.5,00,000/- for causing the death of Vennapusa Ramesh Reddy (hereinafter referred to as 'deceased'), who died in the Motor Vehicle Accident on 18.02.2010.

4. The 1[st] petitioner is the wife, the 2[nd] petitioner is the son, and petitioners 3 and 4 are the deceased's parents. The petitioners' case is that on 18.02.2010 at 09.00 AM, the deceased was travelling in a tractor and trailer bearing No.AP02W6699 and 6698 (hereinafter referred to as offending vehicle) to transport petitioners 3 and 4 are the deceased's parents. The petitioners' case is that on 18.02.2010 at 09.00 AM, the deceased was travelling in a tractor and trailer bearing No.AP02W6699 and 6698 (hereinafter referred to as offending vehicle) to transport sand. On the way, the hook of the trolley detached. The deceased was hit by the trolley rod. He sustained a fracture injury. He got shifted to one private hospital at Anantapur and, after that, to Government General Hospital, Anantapur. While undergoing treatment, he died on 20.02.2010 at 03.30 PM. A case was registered under section 23 of 2010 of B.K.Samudram Police Station for the offence under Section 304-A IPC against the tractor and trailer driver.

5. The 1[st] respondent remained ex parte.

6. The 2[nd] respondent filed counter-denying the allegations in the petition, including the age, income of the deceased and the manner of the accident. It claimed exoneration on the ground that the offending vehicle’s driver did not have a valid driving license. The petitioners must prove that the crime vehicle had a valid permit to ply and a fitness certificate. Under section 170 of the Motor Vehicles Act, It sought protection to take all the defences available to the 1[st] respondent. The claim of the petitioners is highly excessive. petition, including the age, income of the deceased and the manner of the accident. It claimed exoneration on the ground that the offending vehicle’s driver did not have a valid driving license. The petitioners must prove that the crime vehicle had a valid permit to ply and a fitness certificate. Under section 170 of the Motor Vehicles Act, It sought protection to take all the defences available to the 1[st] respondent. The claim of the petitioners is highly excessive.

7. Based on the pleadings, the Tribunal has formulated relevant issues. On behalf of the claimants, PWs.1 and 2 got examined and marked Exs.A.1 to A.4. on behalf of 2[nd] respondent, RWs.1 issues. On behalf of the claimants, PWs.1 and 2 got examined and marked Exs.A.1 to A.4. on behalf of 2[nd] respondent, RWs.1

and 2 got examined and marked Exs.B1, B2; Exs.X1 and X2 were marked.

8. After evaluating the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle's driver. The deceased died due to injuries sustained in the accident. The Tribunal granted a compensation amount of Rs.4,17,000/- with proportionate interest, costs @ 7.5% p.a. From the date of petition till the date of realization against respondents 1 and 2. the accident occurred due to the rash and negligent driving of the offending vehicle's driver. The deceased died due to injuries sustained in the accident. The Tribunal granted a compensation amount of Rs.4,17,000/- with proportionate interest, costs @ 7.5% p.a. From the date of petition till the date of realization against respondents 1 and 2.

9. The learned counsel for the 2[nd] respondent/appellant has contended that the deceased death not occurred due to injuries sustained in the accident, but his death caused due to septicemia and further contended that no premium was paid to cover the coolies risk, so the insurance company is not liable to pay the compensation. contended that the deceased death not occurred due to injuries sustained in the accident, but his death caused due to septicemia and further contended that no premium was paid to cover the coolies risk, so the insurance company is not liable to pay the compensation.

10. Learned counsel for the respondents supported the Tribunal’s findings and observations. findings and observations.

11. Now the points for determination are,

1. Whether the deceased's death occurs due to the rash and negligent driving of the offending vehicle's driver or septicemia? and negligent driving of the offending vehicle's driver or septicemia?

2. Whether the Tribunal erred in fastening the liability on the Insurance Company? the Insurance Company?

Point No.1:

12. To prove the manner of the accident, the petitioner got examined PW.2 – T.Sivaiah. Though the 1[st] petitioner was examined as PW.1, admittedly, she is not an eyewitness to the accident as such much credence cannot be attached to the evidence of P.W.'s.1 evidence regarding the manner of the accident. In the chief examination, PW.2 testified that the accident occurred due to rash and negligent driving of the tractor driver, the tractor hook was fallen on the road, and as a result, the deceased received an iron rod blow to his stomach and suffered stomach pain; the deceased was taken initially to one Private Hospital; later to Government Hospital, Ananathapur where he died. The petitioners have relied on Ex.A1 – Copy of FIR, wherein it is clearly stated that on 18.02.2010 at 06.00 AM, the deceased went to coolie work and was brought to the house at about 10.00 AM. He informed the 1[st] petitioner that while they were transporting sand, a trolley hook failed, and an iron pipe attached to the trolley hit his stomach. The 1[st] respondent took the deceased on a motorcycle to a private hospital, and after treatment, the deceased came to the house at 02.00 PM. As the deceased suffered from severe pain, PW.1 shifted him in an auto to Government Hospital, and while undergoing treatment, he died. Ex.A2 – a copy of the inquest also supports the petitioners' case that the panchayatdars opined that the accident occurred due to rash and negligent driving of the offending vehicle. Ex.A3

– postmortem report also shows that the internal surgery was done to repair the damage to the intestine and the injuries are antemortem in nature, Ex.A4 – a copy of the charge sheet also supports the case of the petitioners. In the charge sheet, PW.2 is also cited as a witness.

13. The respondents placed no evidence to show that the contents of

the charge sheet were incorrect. In K.Rajani and others, V.

M.Satyanarayana Goud and others[1], the erstwhile High Court of Andhra Pradesh observed that:

“when the insurance company knew that the police investigation was false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

14. In Bheemla Devi V. Himachal Road Transport Corporation[2]

the Apex Court observed as follows:

“It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a 12015 ACJ 797

22009 ACJ 1725 (S.C.)

particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard of proof beyond a reasonable doubt could not have been applied".

15. Nothing on record suggests that the Investigating Officer filed a charge sheet against the offending vehicle’s driver without conducting a proper investigation; it is also difficult to hold that the Police Officer fabricated a case. In a proceeding under the M.V. Act, where the procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. The document having some probative value, the genuineness of which is not in doubt, can be looked into by the Tribunal for getting preponderance of probable versions. As such, it is by now well settled that even FIR or Police Papers, when made part of a claim petition, can be looked into for giving a finding in respect of happening of the accident. The preponderance of probabilities is the touchstone for concluding rashness and negligence, as well as the accident's mode and manner of happening. charge sheet against the offending vehicle’s driver without conducting a proper investigation; it is also difficult to hold that the Police Officer fabricated a case. In a proceeding under the M.V. Act, where the procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. The document having some probative value, the genuineness of which is not in doubt, can be looked into by the Tribunal for getting preponderance of probable versions. As such, it is by now well settled that even FIR or Police Papers, when made part of a claim petition, can be looked into for giving a finding in respect of happening of the accident. The preponderance of probabilities is the touchstone for concluding rashness and negligence, as well as the accident's mode and manner of happening.

16. The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to rash and negligent driving of the offending vehicle's driver. When the second respondent/insurance company contends that the injuries are shows that the accident occurred due to rash and negligent driving of the offending vehicle's driver. When the second respondent/insurance company contends that the injuries are

not caused to the deceased, it is to place necessary evidence before the Tribunal based on which the Tribunal expected to give its conclusion. The Tribunal has accepted the claimants' case regarding the manner of the accident and also accepted the observations made by the Investigating Officer in the charge sheet making the offending vehicle’s driver responsible for the accident. The charge sheet's contents also support the claimants' claim regarding the manner of the accident. No material was placed by the appellant/2[nd] respondent to show the contra.

17. The reading of the documents placed before the Tribunal clearly shows that the accident occurred due to the rash and negligent driving of the offending vehicle’s driver. Before considering the contention raised that there is no nexus between injuries caused in the accident and the death of the deceased. I refer to some citations in this regard.

18. In Klaus Mittel Bachert v. East India Hotels Ltd[3]., the Delhi High Court held that:

"128. In words & Phrases, Permanent Edn Vol. 21 at page 448 injury causing death" has been defined as: "If an employee but for an injury would not have died at the time of which and in the way in which he did die the accident. However, it merely hastened a deep-seated disorder that is regarded as resulting in an "injury causing death" within the Work-men’s Compensation Act."

129. Death resulting from injury" has been defined in Vol. XI page 46-47 (CAPP) ibid as follows: "Death re-sulting from an injury covers cases in which an in-jury aggravates or accelerates an existing condition so that death ensues earlier than it would in the or-dinary course, even though the existing condition would have ultimately resulted fatally".

130. In Penney v. Pointers Transport Services Ltd., 1952 (2) All England Law Reports 307 relying on Re: Polemis & Furnace, 1921 (3) KB 560, 577, LORD PILCHER has said: "if death is directly traceable to the injury in the accident for which the defendants are responsible, the chain of causation is not bro-ken".

131. In plain words, if an injury hastens or accelerates the death, directly and not remotely, then in law, the injury in one causing or resulting" in death."

19. In Ratanlal and Dhirajlal, the law of torts speaks about the connection between the Act and death. Chapter "1. Is related to Damages", “…..In deciding whether the damage was caused by the wrongful Act, the generally accepted test is known as but for the test. This means that if the damage did not result from the defendant's wrongful Act, it would be taken to have been caused by the wrongful Act. Conversely, it means that the defendant's wrongful Act is not a cause of the damage if the same would have happened, just the same wrongful Act or no wrongful act”.

20. In Khairullah @ Babu, Lorry Driver Vs. Anita @ Amruthalal Patel[4]. The Common High Court of Andhra Pradesh and Telangana, in following facts of the case that the injured had taken treatment for 25 days after the accident, but no postmortem was done, it was held that the accident could be regarded as the cause of death from the death certificate. As well as the evidence of the public witness. The failure of doctors to either perform a postmortem or the same being issued by the hospital for any reason could not be grounds to deny the compensation claim.

21. Coming to the facts of the case, immediately after the accident, the deceased complied with stomach pain, and he was taken to different hospitals and died while undergoing treatment. It is not the case for the second respondent that the deceased had suffered from ailments other than the injuries sustained in the accident. The 2[nd] respondent/insurance company has not placed any evidence before the Court to show that there was no link between the accident and the death of the deceased.

22. Coming to the facts of the instant case, the 2[nd] respondent also did not bring any material to show that there was no link 4 1994 ACJ 1017

between injuries caused in the accident and the death of the deceased. In the said circumstances, the Tribunal's finding regarding the deceased's death can be upheld.

Point No.2 :

23. As seen from the grounds of appeal, the appellant/insurance company has not seriously disputed the quantum of compensation awarded. company has not seriously disputed the quantum of compensation awarded.

24. The insurance company contends that, as per the petitioner's case, at the time of the accident, the deceased was travelling in the trailer as a coolie to transport sand in the offending vehicle. The insurance company has taken a plea that the driver had no valid driving license. In support of its case, it has got summoned RW.2-I.Prabhakar, Senior Assistant, DTC, Anantapur, to produce an extract of the driving license of B. Ramakrishna, who is the offending vehicle’s driver. RW.2 produced it. As per Ex.X.2=Ex.B2, the driver had a valid driving license to drive a tractor and trailer non-transport. According to R.W. 2's s evidence, the driver shall have a tractor and trailer (transport) driving license for driving a tractor and trailer. case, at the time of the accident, the deceased was travelling in the trailer as a coolie to transport sand in the offending vehicle. The insurance company has taken a plea that the driver had no valid driving license. In support of its case, it has got summoned RW.2-I.Prabhakar, Senior Assistant, DTC, Anantapur, to produce an extract of the driving license of B. Ramakrishna, who is the offending vehicle’s driver. RW.2 produced it. As per Ex.X.2=Ex.B2, the driver had a valid driving license to drive a tractor and trailer non-transport. According to R.W. 2's s evidence, the driver shall have a tractor and trailer (transport) driving license for driving a tractor and trailer. 25.In the light of the above evidence on record, when the facts and evidence in the instant case are considered as rightly observed evidence in the instant case are considered as rightly observed by the Tribunal, it is not a case of the driver not holding the license at the time of the accident. Based on this fact, the learned counsel appearing for the appellant tried to convince the Court that the Tribunal ought to have directed the insurance company to pay and recover the compensation amount. An identical question came to be considered by the Apex Court in Santalal Vs. Rajesh and others[5], in which it was held as follows “the Apex Court has considered the question of whether the holder of a licence for a light motor vehicle can drive a tractor attached to the trolley carrying goods and also whether a separate endorsement is required authorizing him to drive such a transport vehicle.

Conclusion

We have answered the question that a driver with a licence to drive a light motor vehicle can drive such a transport vehicle of LMV class, and there is no necessity to obtain a separate endorsement since the tractor attached to the trolley was a transport vehicle of the category of a light motor vehicle. Hence, there was no breach of the conditions of the policy.

Accordingly, in view of the answer given to reference by the three-Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd. etc. (Civil Appeal No.5826 of 2011), these appeals have to be here allowed. The right given to the insurer to recover the amount from the owner is hereby set aside. The liability is held to be joint and several of owner, driver and insurer.”

26. It is the contention of the insurance company that no premium was paid to cover the risk of the coolies and so the insurance company is not liable to pay the compensation amount. Regarding the contention raised by the insurance company, the Tribunal observed that as per Ex.B.1-insurance policy Rs.25/- was paid to cover the risk of W.C. to employee 1. As per Ex.B1 insurance policy, it was in force as of the date of the accident. was paid to cover the risk of the coolies and so the insurance company is not liable to pay the compensation amount. Regarding the contention raised by the insurance company, the Tribunal observed that as per Ex.B.1-insurance policy Rs.25/- was paid to cover the risk of W.C. to employee 1. As per Ex.B1 insurance policy, it was in force as of the date of the accident.

27. In a decision reported in United India Insurance Company Limited Vs. Tam Tam Venkata Reddy and others[6], it observed that, Limited Vs. Tam Tam Venkata Reddy and others[6], it observed that, “…..Admittedly all the claimants travelling in the vehicle were injured because of the accident, and the only trump card for the Insurance Company in order to get absolved from the liability is a violation of the terms and conditions of the policy. This ground is not available for the Insurance Company to deny compensation to the injured who are third parties, in view of the law laid down by the Apex Court in the decisions reported in New India Assurance Co. Ltd. v. Kamla, 2001 (3) ALD 24 (S.C.): 2001 ACJ 843, United India Insurance Co. Ltd. v. Lehru, 2003 (3) vehicle were injured because of the accident, and the only trump card for the Insurance Company in order to get absolved from the liability is a violation of the terms and conditions of the policy. This ground is not available for the Insurance Company to deny compensation to the injured who are third parties, in view of the law laid down by the Apex Court in the decisions reported in New India Assurance Co. Ltd. v. Kamla, 2001 (3) ALD 24 (S.C.): 2001 ACJ 843, United India Insurance Co. Ltd. v. Lehru, 2003 (3)

62004 (2) ALD 775

ALD 20 (S.C.) : (2003) 3 SCC 338 and N.I v. Baljit Kaur, 2004 (1) ALD 98 (SC) : 2004 (1) Scale 124”.

“……If all the above three judgments are read together, the intention of the Apex Court though under different contexts is crystal clear i.e, even if there is violation of the terms and conditions of the policy, either by way of insured vehicle being driven by a driver not possessing valid licence or the insured vehicle carrying gratuitous passengers, or violation of the terms and conditions of the policy in any other manner, the liability of the insurer to pay compensation to the third party - injured, does not cease. At best, the insurer after paying the compensation to the injured can later recover the same from the insured, by proving the alleged breach of policy conditions since the accident occurred prior to 3.12.2002 i.e, the date of the judgment in Asha Rani's case”.

28. A three-Judge Bench of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs Baljit Kaur and Others[7], considering the question of whether the insurance policy in respect of goods vehicle is required to cover the gratuitous passenger in view of the amendment to Section 147 of the Act, the apex court, after considering all the previous decisions, concluded that the Insurance Company was not liable as the risk of an unauthorized passenger in a goods vehicle or gratuitous passengers are not covered under the policy. There is a breach of the condition of the policy in carrying a passenger in a goods vehicle. Therefore, the vehicle's owner was held liable to satisfy the decree. In paragraph 21, however, the Court thought the interest of justice would be sub-served if the Insurance Company is directed to satisfy the award in favour of the claimant, if not already satisfied and recover the same from the owner of the vehicle.

29. In a decision Shivaraj vs Rajendra[8], the Apex Court, in the following facts of the case, held that “…..the High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify 82018 Law Suit (SC) 853

the owner of the tractor. In our opinion, the conclusion reached by the High Court, in our opinion, is unexceptionable in the present case.

…..At the same time, however, in the facts of the present case, the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with the liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs Swarna Singh & Others 2004 3 SCC 297 1, Mangla Ram Vs. Oriental Insurance Co. Ltd. 2018 5 SCC 656, Rani & Ors. Vs. National Insurance Co. Ltd. And others 2018 9 Scale 310 including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. 2017 4 SCC 796. In other words, the High Court should have partly allowed the appeal preferred by respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with the liberty to recover the same from the tractor owner".

30. In Shamanna and another Vs. The Divisional Manager The Oriental Insurance Co. Ltd. and Ors.[9], the Apex Court held that

“to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National In-surance Co. Ltd. v. Parvathneni and anoth-er.[10] which doubted the correctness of the de-cisions in the exercise of jurisdiction under Article 142 of the Constitution of India direct-ing insurance companies to pay the compen-sation amount even though the insurance company has no liability to pay. In the Par-vathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such types of cases and that if the insurance company has no liability to pay at all, then it cannot be compelled by order of the Court in the exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. The above reference in the Parvathneni case was disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case. Since the reference to the larger Bench in the Parvathneni case has been disposed of by keeping the questions of law open to be de- cided in an appropriate case, presently, the decision in the Swaran Singh case followed in Laxmi Narain Dhut, and other cases hold the field. The award passed by the Tribunal direct-ing the insurance company to pay the com-pensation amount awarded to the claimants and, after that, recover the same from the owner of the vehicle in question is in accor-dance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cas-es. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first res-pondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance compa-ny from its liability and directing the clai-mants to recover the compensation from the owner of the vehicle is set aside, and the award passed by the Tribunal is restored".

31. Coming to the instant case, the vehicle owner paid an addi- tional premium to cover the liability of one coolie. The insur-ance company is bound by the terms of the contract. In the present case, the policy issued by the insurance company is a package policy.

32. On the other hand, the policy issued under section 147 of the Motor Vehicles Act is a statutory policy and is also called an Act policy. The insurer's liability under this policy is re-stricted to indemnify the insured in respect of the claim made by the third parties and the owner of the goods or his autho-rized representative who travels in the goods vehicle along with the goods.

33. According to my opinion, even labourers who are travelling along with sand may be considered as the authorized repre-sentative of the owner of the goods travelling in the trailer be-ing a third party, and on that ground, the Insurance Compa-ny is liable to pay compensation a statutory liability to the third party those were labourers travelling in the trailer along with goods being his authorized representative of owner car-ried in the vehicle. So, on that ground also, the insurance company cannot deny the liability of the labourer who was proceeding on the trailer at the time of accident occurred. The evidence on record shows that the deceased was proceeding on the trailer as a labourer, though it has not contributed to the accident, as he is not supposed to proceed on the trailer, this Court views that a direction can be given to the insur- ance company to pay and recover the compensation from the offending vehicle’s owner.

34. As a result, the appeal is partly allowed without costs by modifying the order dated 29.10.2012 in MVOP No.426 of 2010 passed by the Chairman; Motor Accidents Claims Tri-bunal-cum- Judge – Family Court, Anantapur. The 2[nd] res-pondent/insurance company is directed to pay the amount within two months from the date of the order and recover the same from the offending vehicle's owner by filing an Execu-tion Petition before the Tribunal. The petitioners can with-draw the amount by filing an appropriate application before the Tribunal.

Dt.30.12.2022 KGM

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T. MALLIKARJUNA RAO, J