Citra Laxmi and Others vs Balge Balaji and Others

Noushad Ali, J.—This is an appeal filed by the claimants in O.P. No. 220 of 1997, on the file of the learned IV Additional District Judge, East Godavari District, Kakinada, whereby the claimants'' petition, filed u/s 166 of Motor Vehicles Act, 1988, was allowed and a compensation of Rs. 1,35,200 with interest of 12 per cent per annum was granted in favour of the Appellants against the Respondent Nos. 1 and 2 and dismissed the petition against the Respondent No. 3 insurance company. Appellants have filed this civil miscellaneous appeal only insofar as the dismissal of the O.P., against the Respondent No. 3, insurance company.

Heard the learned Counsel for the Appellants and no appearance has been made on behalf of the Respondent No. 3, insurance company, despite service of notice on the Respondent No. 3, insurance company.

In this appeal, for the sake of convenience the parties are referred to as ''claimants'' and ''Respondents''.

The brief facts are that the claimant No. 1 is the wife and the claimant Nos. 2 to 4 are the children of one Satyanarayana (hereinafter referred to as ''deceased''). On 13.9.2006 at about 8.30 p.m., the deceased went to Kakinada for purchasing some material for his business. After purchasing some material, he came to Annavaram on a bus with his goods and there, he boarded a lorry bearing registration No. AP 5-T 1242 to go to his village. When the lorry reached near Rajula Kothuur on NH 5 another lorry bearing registration No. MH 13-B 4967, driven by the Respondent No. 1 in a rash and negligent manner, while overtaking another lorry bearing registration No. AHT 5351, dashed against the lorry bearing registration No. AP 5-T 1242 in which the deceased was travelling. In the said incident, the deceased Satyanarayana died. The claimants, therefore, filed O.P. No. 220 of 1997 and claimed a compensation of Rs. 1,50,000 for loss of dependency, loss to estate and loss of consortium.

The Respondent Nos. 1 and 2 remained absent and they were set ex parte.

The insurance company, Respondent No. 3 opposed the claim on the ground that the claimants did not approach the court with true and correct facts. There is no proof of marriage between the claimant No. 1 and the deceased. The deceased had already suffered amputation of his right hand prior to the accident. The insurance company, Respondent No. 3 did not admit that the driver had valid and subsisting driving licence and the vehicle had valid permit and was road worthy.

The Claims Tribunal framed the following three issues:

(1) Whether the accident took place due to rash and negligent driving of the Respondent No. 1 driver of lorry bearing registration No. MH 13-B 4967?

(2) Whether the Petitioners are entitled to compensation, if so, what amount and from which of the Respondents?

(3) To what relief?

The claimant No. 1 examined herself as PW 1 and examined six others and marked Exhs. A1 to A13. As noted above, the Respondent Nos. 1 and 2 remained ex parte. The insurance company, Respondent No. 3, did not examine any witness, but filed Exh. B1, certificate-cum-insurance policy.

The Claims Tribunal, based on Exh. A1, which is a certified copy of the registered gift deed, dated 14.6.1979, recorded a finding that claimant No. 1 is the legally wedded wife of the deceased. Based on Exh. A5, which is an attested true copy of the post-mortem certificate dated 14.9.96, Claims Tribunal also recorded a finding that the age of the deceased was about 35 to 40 years. The earnings of the deceased was rated at the rate of Rs. 900 per month and after deducting one-third towards his personal living expenses, the Claims Tribunal awarded Rs. 1,15,200 towards loss of dependency; Rs. 10,000 towards loss to estate; and Rs. 10,000 more towards loss of consortium. Thus, the Claims Tribunal awarded Rs. 1,35,200 in toto in favour of the Appellants herein.

There is no challenge by way of appeal by the insurance company, Respondent No. 3, either with regard to the factum of accident or with regard to the quantum of compensation awarded by the Claims Tribunal. No evidence was adduced on its behalf on any issue. In this view of the matter, there is no need to go into the questions as to whether the accident took place due to rash and negligent driving of the Respondent No. 1 or with regard to the adequacy of compensation.

The only question to be considered in this civil miscellaneous appeal is whether the Claims Tribunal ought to have attached liability to the insurance company, Respondent No. 3 also in addition to the liability of the Respondent Nos. 1 and 2?

There is no dispute that offending vehicle was the lorry bearing registration No. MH 13-B 4967. There is also no dispute that the claimants petition was filed against the driver and owner of the said vehicle. There is also no dispute that no claim was made against the lorry bearing registration No. AP 5-T 1242 which the deceased purportedly boarded. There is no dispute that the offending vehicle bearing registration No. MH 13-B 4967 was covered by valid insurance certificate. The Claims Tribunal declined to fasten the liability on the insurance company, Respondent No. 3, on the premise that the deceased was an unauthorised passenger and that there was no evidence on record to show that the deceased boarded the lorry along with his goods on paying the charges. The Claims Tribunal treated the deceased as a gratuitous passenger and since insurance policy, Exh. B1, did not cover such gratuitous passengers, insurance company, Respondent No. 3 was absolved from its liability.

On closer examination of the facts, it may be noticed that the deceased boarded the lorry bearing registration No. AP 5-T 1242 and that he was not a passenger in the offending lorry bearing registration No. MH 13-B 4967. The clear case of the claimants was that the lorry bearing registration No. MH 13-B 4967, driven by the Respondent No. 1 in a rash and negligent manner, dashed against the vehicle bearing registration No. AP 5-T 1242, which resulted in the death of the deceased. It may also be noted that the claimants'' petition itself was filed against the vehicle bearing registration No. MH 13-B 4967 in respect of which the insurance company, Respondent No. 3, had issued insurance policy, Exh. B1. It is, therefore, clear that these vital facts were apparently not noticed by the Tribunal while absolving the insurance company, Respondent No. 3 from its liability. It would have been a different matter if the claim had been made against the vehicle bearing registration No. AP 5-T 1242 in which the deceased was said to have been travelling. In this view of the matter, the deceased cannot be treated to be a passenger, much less a gratuitous passenger, in the offending vehicle bearing registration No. MH 13-B 4967. The deceased, therefore, in my view, would be a third party insofar as the offending vehicle is concerned.

It may also be seen that Clause (g) of Section 145 of the Motor Vehicles Act, 1988, ''third party'' is defined as ''includes the government''. The definition is an inclusive definition capable of wider import and in my opinion, it covers such of those between whom there is no privity of contract and I need not stretch the scope of the definition beyond this having regard to the factual position in this case. Suffice, the Claims Tribunal stated that deceased was not a passenger in the offending vehicle bearing registration No. MH 13-B 4967 and in the circumstances, he should not have been treated as a gratuitous passenger in the said vehicle. The findings of the Claims Tribunal in this regard, are therefore, not sustainable and accordingly, the award in O.P. No. 220 of 1997, dated 5.7.2000, on the file of the learned IV Additional District Judge, East Godavari, Kakinada, is modified. Insurance company, Respondent No. 3 is also jointly and severally liable in addition to the Respondent Nos. 1 and 2 herein.

Accordingly the civil miscellaneous appeal is allowed. No costs.