United India Insurance Co. Ltd. vs Sulochana and Others

Ghulam Mohammed, J.—This appeal is directed against an award made by the Tribunal in O.P. No. 113 of 1989 dated 5-12-94 wherein the Tribunal on appreciation of medical evidence awarded a sum of Rs. 40,000/- towards injuries sustained. The Insurance Company preferred the present appeal contending that the Tribunal ought not to have imposed liability on the Insurance Company in view of the fact that the injured was travelling as unauthorised passenger in goods vehicle i.e., tractor and trailer. The brief facts of the case are as follows:

On 4-6-1987 the petitioner and some others were travelling in Tractor and Trailer bearing Nos. ADC 9286 and ATC 686 belonging to the first respondent and at about 3.00 a.m. when the tractor was proceeding on M.B.T. road, the driver of the tractor drove the same in rash and negligent manner with high speed due to which the tractor went off the road and hit a culvert and the petitioner and some others received injuries. A case was registered against the first respondent and the driver of the tractor in question was convicted and sentenced to pay a fine of Rs. 900/-. The injured at the time of accident was 37 years, old. The injured was admitted in Government Hospital, Bangarupalem and thereafter shifted to Government Hospital, Chittoor and was treated as in-patient for 3 days. Thereafter, she was admitted in CMC Hospital, Vellore and she stated that she suffered permanent disfiguration at her early age due to the injuries sustained and that she sustained mental pain and agony and that the Doctor advised her to undergo plastic surgery and she approximately incurred Rs. 10,000/- to Rs. 15,000/- for the same. She claimed a total compensation of Rs. 75,000/-.

Second respondent filed counter affidavit denying the averments made in the claim petition particularly the age and occupation of the injured and it is further stated that the petitioner and 30 others were travelling in tractor and trailer for attending a marriage and that the policy alleged to have been issued does not cover the passengers travelling in the tractor-cum-trailer and that the vehicle in question is not expected to carry any passengers as per the policy and also as per the provisions of M.V. Act. Therefore, it is contended that the Insurance Company is not liable to pay any compensation. On the above pleadings, the Tribunal has framed necessary issues.

With regard to the first issue whether the accident resulted due to rash and negligent driving of driver of the tractor-cum-trailer, the Tribunal believed the version of P.Ws. 1 and 2. There was no evidence adduced on behalf of the respondent with regard to the rash and negligent driving of the tractor. Believing the version of P.Ws. 1 and 2 the Tribunal found that the accident occurred due to rash and negligent driving of the driver of tractor-cum-trailer and accordingly decided the issue in favour of claimants.

With regard to the third issue i.e., assessment of compensation, the Tribunal considered the evidence of P.W.4 who is Professor of Plastic Surgery Department, C.M.C. Hospital, Vellore. P.W. 4 deposed about the nature of injuries sustained by the injured, about the treatment he suggested and about the permanent disfiguration of the face of the injured stated that there is nadal nose deformity with permanent scaring across the cheek and the scaring is running from one cheek to another cheek. P.W.4 further opined that even after plastic surgery, the disfiguration cannot be cured but it can only be reduced. P.W.4 finally opined that except the defect in breathing and facial disfiguration there is no other permanent disability.

The Tribunal after considering Ex.A-2 wound certificate, nature of injuries sustained by injured and the evidence on record assessed the compensation and awarded Rs. 40,000/- covering pain and suffering.

Learned Counsel for appellant Mr. K.L.N. Rao, is not disputing the quantum but he vehimently contended that the learned Judge should have exonerated the Insurance Company since the petitioner was travelling in a goods vehicle as unauthorised passengers and that the tractor-cum-trailer in question is intended to be used only for the purposes of carrying the goods together with employees/labourers for the purpose of loading and unloading the goods and as far as the other persons are concerned, they are not covered under the policy. He further contended that fare paid passengers, gratuitous passengers and unauthorised passengers are not covered and in such situations in the event of any eventuality of any accident, the liability cannot be fastned on the Insurance Company. He has drawn my attention to the judgment of this Court in Dilli Krishna Reddy and another Vs. Sri Ramula Sathaiah and others, wherein in an identical situation where the tractor-cum-trailer was used for carrying passengers to attend a marriage function, this Court relying upon the judgment of the Apex Court in Smt. Mallawwa v. The Oriental Insurance Company Limited 1998 (9) Supreme 70 held that the persons travelling both as fare paid passengers and gratuitous passengers in a goods vehicle, the Insurance Company is not liable to pay the compensation while considering the provisions of Section 95(1)(b) of 1939 Act which is identical to that of Section 147 of Motor Vehicles Act, 1988. The Apex Court held that even fare paid passengers and gratuitous passengers travelling in a goods vehicles, the Insurance Company is not liable to pay the compensation.

Following the above decisions, I am of the view that the Tribunal should have exempted, the Insurance Company from its liability. Therefore, the award of- the Tribunal imposing the liability on the Insurance Company to pay the compensation is hereby set aside by exonorating the Insurance Company. Since, the appellant herein has already deposited a sum of Rs. 20,000/- pursuant to the award of the Tribunal, it is open to the appellant to recover the same from fifth respondent herein.

In view of the above, the appeal is allowed exonorating the Insurance Company from its liability. No costs.