Kadese Shyam Rao vs N. Ravinder Reddy and Others

B. Siva Sankara Rao, J.—The injured-claimant having been aggrieved by the award, dated 14.07.2008, in O.P. No. 225 of 2006 of the Chairman, Motor Accident Claims Tribunal-cum-I Additional District Judge, Adilabad (for short, ''the Tribunal), for the claim filed under Sections 166 and 163-A of the Motor Vehicle Act, 1988 (for short, ''the Act''), awarding compensation of only Rs. 1,13,180/- with interest at 7.5% per annum only against the owner of the auto bearing No. AP 1 V 168 by exonerating the insurer with the observation that the vehicle is with seating capacity of ''one'' and not covered the risk of passenger to sit and travel from which claimed sustained injuries and hence the insurer cannot be made liable. It is impugning the same, the present appeal is filed.

The contentions in the grounds of appeal as well as the oral submissions from the counsel for the claimant are that the Tribunal gravely erred in not considering the factum of the auto trolley is with seating capacity of ''2'' as per the registration and permit and it is also mentioned clearly in the policy as with two seater capacity and the policy is also a package policy and not mere Act policy and premium for employee and driver additionally collected, in addition to Act policy; apart from the injured is travelling as owner of the goods with the cotton load taken on the goods auto covered by Act policy itself and hence to fix the joint liability and to enhance the compensation as claimed from the nature of injuries sustained, period of treatment undergone and expenses incurred. The learned counsel for the appellant-claimant reiterated the same in the course of hearing.

Whereas it is the contention of the learned counsel for the insurer that this Court way back in Vachala and Others Vs. V.R. Kumar and Another, , held that insurer is not liable to cover the risk of the person travelling sitting by the side of the driver even as owner of goods in the single seat goods auto for no seating capacity or permit and also placed reliance on the expression of the Apex Court in National Insurance Co. Ltd. Vs. Cholleti Bharatamma and Others, , on the proportion that insurer is not liable to cover the risk of a person travelling in the goods carriage in the absence of proof as owner of the goods and in the absence of policy covering the risk.

Perused the material on record. For sake of convenience the parties are being referred as arrayed before the Tribunal.

Now the points that arise for consideration in the appeal are

"1. Whether the award of the Tribunal exonerating the insurer is unsustainable and the quantum of compensation awarded by the Tribunal is utterly low and requires interference by this Court while sitting in appeal and if so, with what observations?

To what result?"

POINT No. 1:

There is no dispute on the manner of accident and the injured was travelling in the goods auto trolley sitting by the side of the driver at the time of accident and the accident is the outcome of rash and negligent driving of the driver of the said auto of the 1st respondent, insured with the 2nd respondent covered by Ex. B.1-policy.

Now coming to the dispute as to the injured can be claimed as owner of the goods, much less to sit and travel by the side of the driver of the auto, the principle laid down in Vachala and Cholleti Bharatamma (supra), when there is a capacity of one person, there is nothing to permit any person to sit by the side of the driver and that person is no other than the unauthorized passenger, in such event, for no capacity even to claim as owner of goods to travel. As per section 147 sub-section (1) proviso (1) clause (c), owner or representative of goods can carry any goods carriage and the Act policy itself covers the risk and as per Clause (2), there can be a contractual liability between the insurer and insured from collection of additional premium to cover any specified risks, which are covered by IMT.

Here, a perusal of the policy covered by Ex. B.1-policy speaks that the vehicle is with the capacity of ''two'' and it further speaks that additional premium for the driver and another employee besides PA to owner collected with contractual liability in addition to Act policy covers the risk for owner of the goods to travel by sitting by the side of the driver as the seating capacity is ''two'' and not ''one'' from the very insurance policy document. When such is the case, the injured, who is the owner of the goods, can travel and the principle laid in Cholleti Bharatamma (supra) even applies here to say owner or representative of goods can sit and travel in the cabin of the vehicle subject to seating capacity. The principle laid down in Vachala (supra), even equally not in dispute, the factual matrix there is entirely different to the case on hand, particularly for the reason that there was the seating capacity of the goods auto is ''one'' and not the seating capacity of ''two'' like herein and what the principle laid down there is, when there is no seating capacity other than the driver, owner or representative of the goods cannot sit and claim, but being considered as unauthorized passenger. Here, when there is a seating capacity of ''two'', the owner of goods can sit and travel by side of driver and he cannot be called as unauthorized passenger, that is the distinction to the case on hand with reference to the facts of Vachala (supra). Thus, the insurer is liable to indemnify the insured to pay to the injured being the owner of the goods travelling by the side of the driver in the auto with the seating capacity is ''two''.

Now coming to the compensation, what the Tribunal awarded Rs. 1,13,180/- which include pain and sufferance, disability from the injuries, transport charges, attendant charges, extra nourishment and loss of earnings are concerned, it requires to be enhanced to Rs. 1,20,000/- only. Accordingly, point No. 1 is answered.

POINT No. 2:

In the result, the appeal is allowed in part while fixing joint liability on the insured and insurer, enhancing the compensation from Rs. 1,13,180/- to Rs. 1,20,000/- (Rupees one lakh twenty thousand only) with interest at 7.5% per annum from the date of petition till realization. The 2nd respondent (insurer) is directed to deposit the amount due within one month from the date of receipt of a copy of this order, failing which the claimant can execute and recover. On such deposit or execution of recovery, the claimant is permitted to withdraw the same. No order as to costs.

Miscellaneous applications pending, if any, shall stand closed.