C.R. Munirathanam Reddi vs Krishnamma and Another

S. Dasaratharama Reddi, J.—This is an appeal filed by the owner of the tractor, bearing No. APC 9147, and its trailer, bearing No. 8909, against the award of the Motor Accidents Claims Tribunal, Chittoor, granting compensation of Rs. 24,950 to the claimant who was injured in an accident on September 17, 1984, involving the tractor and its trailer.

The claimant filed O.P. No. 100 of 1985, u/s 110A of the Motor Vehicles Act, 1939, hereinafter referred to as "the Act", seeking an award for Rs. 50,000 towards compensation against the owner of the vehicle, Munirathnam Reddy, the appellant herein and also against the United India Insurance Co. Ltd. with which the vehicle was insured. She also filed a separate petition O.P. No. 101 as 1985, u/s 92A of the Act seeking a compensation of Rs. 7,500.

The case of the appellant is that while she along with her mother-in-law were going from Thenabanda to Chittoor on September 17, 1984, for purchasing provisions, the tractor together with its trailer came behind them with a load of gravel and the driver of the tractor persuaded them to take a free lift up to Chittoor. The driver drove the tractor rashly and negligently and entered into an invalid lane in Chittoor without reducing the speed while taking a turn in the said street, as a result of which, she fell down and the wheel of the tractor ran over her right leg causing bleeding crush injury resulting in amputation of her leg. The owner, the appellant herein, filed a written statement denying the rash and negligent driving of the driver and contending that the claimant was an unauthorised passenger as the driver was not authorised to carry passengers in the tractor and as the driver acted beyond the scope of his employment he is not liable to pay the compensation even though the accident was due to the rash and negligent driving of the driver of the tractor. The owner has also filed an additional written statement after the trial has commenced taking a new plea that the claimant was travelling in the tractor as owner of the gravel for the purpose of selling the same at Chittoor or alternatively was travelling in the capacity of the representative of the stock and as such the compensation is payable by the insurance company. The insurance company filed written statements opposing the petitions contending that it is not liable as the owner has violated the terms and conditions of the insurance policy, that the tractor was insured for the purpose of agriculture and does not cover passengers and in any even as the claimant was a gratuitous passenger, it is not liable and also filed the insurance policy, exhibit B-3 in support of its plea.

The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the tractor and awarded total damages of Rs. 24,950 to be recovered from the owner and dismissed the claim against the insurance company holding that the claimant was a gratuitous passenger not covered by the insurance policy. As the amount awarded u/s 110A of the Act was higher than Rs. 15,000, the Tribunal dismissed O.P. No. 101, filed u/s 92A of the Act.

Against this order, the owner filed the above appeal. Mr. C. Sadasiva Reddy, learned counsel for the appellant, raised the following contentions :

(1) The accident occurred due to the negligence of the claimant and that the driver did not drive the vehicle rashly or negligently.

(2) Even assuming that the accident has occurred due to the rash and negligent driving of the driver, in view of the evidence of the claimant it has to be held that the gravel transported in the trailer belongs to the claimant and as the claimant accompanied the goods in the capacity as owner of the goods, the insurance company is liable to pay the compensation.

(3) In any event the insurance company is liable to the extent of Rs. 7,500 under no-fault liability as per section 92A of the Act.

Though in the grounds of appeal, the quantum of damages is challenged, learned counsel for the appellant has fairly conceded that he is not questioning the same.

Contention No. 1 - Negligence of the driver :

The appellant in his evidence has categorically admitted that the accident took place only on account of the negligence of the driver of the tractor. The appellant has taken an inconsistent stand. In the main written statement, he has taken the plea that the claimant was a gratuitous passenger, that the driver was not authorised to carry passengers in the tractor, that the picking up of the claimant by the driver was outside his course of employment and that the vehicle was not driven in a rash and negligent manner by the driver. But in the amended written statement evidently to mulct the insurance company with liability, the appellant has taken the stand that the claimant was the owner of the gravel and was accompanying the goods in the tractor and hence the insurance company is liable. Thus to strengthen his alternative plea, he deposed and made a categorical assertion that the driver drove the vehicle in a rash had negligent manner. Curiously the driver, viz., Pushparaj, was not examined and the result of C.C. No. 106 of 1986, on the file of the Fifth Additional Munsif magistrate, Chittoor, is not disclosed. Exhibit A-3, the M.V. Inspector report, shows that there are no mechanical defects in the vehicle. Under these circumstances, the principle or res ipsa loquitur applies as held by the Supreme Court in Basthi Kasim Saheb v. Mysore State Road Transport Corporation : AIR1991SC487 and the burden is on the owner to prove that there is no negligence on the part of the driver. Moreover, in view of the categorical statement of the appellant in the cross-examination that the driver has been rash and negligent in driving the tractor, the Tribunal is correct in holding that the accident occurred due to the rash and negligent driving of the driver. Accordingly, the first contention is rejected.

Contention No. 2. - Liability of the insurance company u/s 110A of the Motor Vehicles Act :

The consistent case of the claimant is that she was given free lift by the driver of the tractor to Chittoor. It was never her case that she was the owner of the gravel and that she was accompanying the goods in the tractor. The story of ownership of the gravel by the claimant was set up by the appellant during the midst of the trial by way of an additional written statement to mulct the insurance company with liability. On this issue nothing was elicited in the cross-examination of the claimant, who is the best person to depose regarding the ownership of the goods. As according to the claimant herself, she is a gratuitous passenger, the insurance company is not liable for the damages. Further, one of the conditions of the insurance policy, exhibit B-3, is that the tractor should be used only for agricultural purposes and should not be used for carrying passengers other than employees. Thus, the insurance company is not liable for the damages payable to the claimant.

Contention No. 3. - Whether the insurance company is liable for no-fault liability.

This court in K. Ramulu and Others Vs. Shaik Khaja and Others, held that the insurance company is also liable along with the owner for no-fault liability u/s 92A of the Act even though there is breach of any of the conditions of the policy. This court further held that as long as the vehicle is insured and the death or permanent injury has taken place as a result of the accident involving the vehicle, the owner as well as the insurance company are liable under the head of no-fault liability even if the insurance company may not be liable under tortious liability u/s 110A of the Act. Sri Dharma Rao, learned counsel for the insurance company, has contended that this decision is the subject-matter of L.P.A. Nos. 276 of 1992 and 68 of 1993, and, accordingly, requested that this may be referred to a Division Bench. But I feel that the reference of the case to a Division Bench is not necessary as the accident occurred as early as on September 17, 1984, and the original petition itself was pending for nearly six years and referring to the Division bench will result in further delay. Following the decision of the learned single judge, I hold that the insurance company is liable to the extent of Rs. 7,500.

In view of the above, the appeal is partly allowed and the appellant and the second respondent-insurance company are liable to pay jointly and severally an amount of Rs. 7,500 u/s 92A of the Act to the first respondent herein and the appeal in other respects is dismissed without costs and for the balance the appellant is solely liable to the first respondent.