The National Insurance Company Ltd. vs Ellandula Yelisa and Others

Dr. B. Siva Sankara Rao, J.—The 2nd respondent-insurance company, in the claim petition, filed this appeal having been aggrieved by the Order/Award of the learned Chairman of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Warangal (for short, ''Tribunal'') in M.V.O.P. No. 980 of 2003 dated 30-08-2006, awarding compensation of Rs. 2,82,000/- with interest at 7.5% per annum as against the claim of the claimant of Rs. 3,00,000/- in the claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short, ''the Act''), for the death of E. Yella Swamy aged about 26 years as per Ex. A.4 Post-Mortem Examination (PME) report in the accident dated on 06-07-2002 with the contentions that the deceased was sitting on the sand load of the trailor propelled to the tractor for alleged unloading of the sand being unauthorized person, the Tribunal went wrong in awarding compensation instead of exonerating the insurer from the trailor not covered by the risk.

Heard Sri P. Phalguna Rao, the learned Standing Counsel for the appellant-Insurance Company and Sri A. Ravinder, learned counsel for the respondents. Perused the material on record. The parties hereinafter are referred to as arrayed before the Tribunal for the sake of convenience in the appeal.

Learned counsel for the appellant/insurer reiterated the contentions in the grounds of appeal. Whereas, it is the contention of learned counsel for the respondents there is nothing to interfere while sitting in appeal. Hence, to dismiss the appeal.

Now the points that arise for consideration in the appeal are:

"1. Whether the award of the Tribunal awarding compensation of Rs. 2,82,000/- with interest @7.5% with joint liability against the owner and insurer of the tractor and trailor holding the deceased was in course of employment is unsustainable and insurer is liable to be exonerated and if so, with what observations?

To what result?"

POINT-1:

The facts in dispute are that on the fateful day the deceased was sitting on the sand load of the trailor propelled to the tractor driving for the purpose of un-loading as a coolie i.e. as a labourer. The claimants are wife, two minor children and the mother of the deceased four in number are dependants on the deceased. The deceased was earning Rs. 3,000/- per month. The manner of accident happened was it is while the tractor and trailor driven by the driver of the 1st respondent owner at Deshi Cheruvu Bund while getting down with the sand load, there was jerk suddenly from which deceased fell down who was sitting on the sand load and the tractor-trailor ran over from which he was succumbed to crush injury to the head. Ex. B.1 policy speaks is not merely an Act Policy, it covers the risk of six coolies of claimed on annual amount as Rs. 90 by mentioning as Workmen Compensation employees. Rule-185 of A.P.M.V. Rules entitles to permit six coolies to travel for loading and un-loading. The contention of the insurer is loading and unloading does not include after loading to travel on the trailor on sand load where it is not meant for. Even taken the same for arguments sake of contention from the collies sitting on the sand load of the trailor is unauthorized, the accident was resulted not from the traveling on the tractor on sand load but also the other factors intervened that is after he fell down from the rash and negligent driving of the tractor and from the jerking, and there from he was succumbed by the trailor ran over to say the moment he fell down, he is a third party.

The fact that the trailor is with load of sand and it is propelled to the tractor in use is not in dispute for the purpose of the appeal. Ex. A.1 FIR which set the law into motion within few hours after the occurrence on 06-07-2002 speaks that deceased was traveling for the purpose of unloading sand of the trailor of the tractor and it is categorically mentioned that the deceased on the sand load. It further speaks while so travelling, it is the due to high speed driving of the driver of the tractor, resulting in jerks to the trailor, as a result of which the deceased fell down and the vehicle ran over him and he was succumbed at the spot. The charge sheet filed by the police against the driver of the tractor covered by Ex. A.2 also speaks the same. It clearly proves from the same so also from the petition averments of the claim petition that the deceased was the hamali for the purpose of unloading of the sand loaded on the trailor traveling by sitting on the sand load. He fell down and there from the vehicle ran over and he was succumbed, otherwise the accident could not be occurred. No doubt as per IMT 39 and 39(A) legal liability to persons employed in unloading up to seven including driver and cleaner engaged service by the owner in occupation of the vehicle can be covered by policy if additional premium collected. The Apex Court three judge Bench in National Insurance Co. Ltd. Vs. Prembai Patel and Others, , also held that even Act policy does not cover the risk for workmen engaged by the owner of the vehicle for the purpose of loading and unloading without payment of additional premium as it covers under Section 147(1) Proviso (a, b & c) of driver of vehicle, conductor or ticket collector of public transport vehicle and representative of the goods in a goods carriage vehicle. The learned counsel for the insurer in this regard placed reliance upon Vachala and Others Vs. V.R. Kumar and Another, . It is under Section 147 of the M.V. Act referring to Rule 252(5) of A.P.M.V. Rules observed that in the goods trolley with seating capacity one meant for the driver when carrying of passengers is prohibited and there is no coverage of risk as question of anybody else either be owner of the goods or is authorized representative being allowed to travel, does not arise. This decision has no application to the facts for not even a case of deceased sat behind driver on the tractor with single seating capacity of driver like a trolly auto.

The other decision placed reliance is The New India Assurance Co. Ltd. Vs. Lodya Shankar and Others, a case under the Workmens Compensation Act, where it was observed that even owner of the vehicle took policy that covered driver and cleaner of the lorry, for other persons carried therein, the insurer cannot be made liable for policy not covered such risk. The other decision of the Apex Court relied upon is Ramashray Singh Vs. New Indian Assurance Company Limited 2007 ACJ 1999 known as Kalasy case in the claim for death of kalasy under Section 147 of the M.V. Act, the policy covers only risk of 13 passengers and driver and not risk of kalasi and as such held when the policy not covered the risk, the questioning of fastening liability against the insurer does not arise. Here, this decision also has no application as a workman for loading and unloading is covered from the policy from additional premium paid under Ex. B.1 policy. The other decision placed reliance is United India Insurance Company Limited Vs. Serjerao and Others, . In this case it was held that unless the deceased was with in the meaning of workman under owner of the vehicle, the insurer is not liable to indemnify and Act policy does not cover risk of those not specified in Section 147(1) of M.V. Act. In this case it was relied upon Oriental Insurance Co. Ltd. Vs. Brij Mohan and Others, in the claim under Section 147 of the M.V. Act, it was held that labourers traveling in tractor-trailor (not working under the insured) the insurance company has no liability. Further the proposition in this decision also has no application to the present facts for the reason that in this case even additional premium covering risk of six hamalies collected by the insurer undertaking the liability and the deceased was engaged as cooli by the vehicle owner.

The other decision placed reliance is New India Assurance Co. Ltd. Vs. Vedwati and Others, where it was held the insurance company has no statutory responsibility to get his vehicle insured for covering any passenger traveling in the goods carriage. In Sanjeev Kumar Samrat Vs. National Insurance Company Ltd. and Others, , the Apex Court held in reference to Section 147 of the M.V. Act referring to the expression in Prembhai Patel, Vedwathi etc., and came to the conclusion that the word " any person" used in Section 147 of the M.V. Act does not include employee of hirer which is distinct from a passenger in a goods vehicle. It is an Act policy of the Goods vehicle for death of employee of hirer concerned, the High Court found in reversing the order of the tribunal, of policy not covered risk of employees of hirer of vehicle since Act policy, covers specified employees of the insured either employed or engaged by him and not covering risk of employees of the hirer of the vehicle. Here, that difficulty also does not arise as the evidence shows the deceased was engaged by the owner of the vehicle and not the deceased was cooli under any other hirer of the vehicle. In Manager, National Insurance Company Ltd. Vs. Saju P. Paul and Another, -it was held that the insurance company under Section 147 of the Act is liable to pay compensation only in respect of those employees for whom insurance premium is paid, unless they are specified in Section 147(1) of the Act. Here, the spare driver is not covered as acting in the course of employment though working under the owner in some other vehicle from so to claim even by the time accident taken place thereby for no additional coverage for spare driver, insurer is held not liable. The sum and substance of the expressions supra is if it is in the course of employment even it is an Act Policy, the risk covered for driver, conductor/ticket collector of public transport vehicle working under the insured and not for employee under the hirer of the vehicle of the insured, but for representative of the goods in the goods vehicle. In fact, the proposition also has no application herein as the deceased was one of the hamalies as discussed supra and not mere unauthorized passenger and the policy also covered the risk. The tribunal in fact had not drawn its attention to these propositions.

Here it is also important to note that besides the evidence of P.W. 1 with reference to Ex. A.1 and Ex. A.2 FIR and charge sheet supra also with reference to evidence of P.W. 2 and Ex. A.4 P.M. report, the vehicle ran over the deceased hamali who sat on the sand load of the trailor in traveling for the unloading, but for to say no permit to allow to sit on the sand load of trailor. Thus, policy covers the risk, though there is violation of policy and permit conditions, on the part of the owner and driver as well as the deceased. It is no doubt but for his sitting on the sand load of trailor propelled to the tractor and fall from rash driving he could not be run overed. Thus, there is also negligence on the part of the deceased, besides that of the tractor driver even the deceased was hamali and otherwise policy covers the risk, there is violation of permit in allowing the hamali to sit on the sand load of the tractor. The policy terms are that it shall be used only for agricultural purpose, but here in this case, the first respondent has used for transportation of sand. There is no clear evidence as to the sand transporting is for a purpose other than agricultural purpose. The law is fairly settled right from the three judges Bench expression of the Apex Court''s in National Insurance Co. Ltd. Vs. Swaran Singh and Others, , leave about earlier expressions of Sohan Lal Passi Vs. P. Sesh Reddy and others, and United India Insurance Company Ltd. Vs. Lehru and Others, that once the policy covers the risk under Section 149 read with 168 of the M.V. Act, the insurer is liable to indemnify the third party claim but for on such violation to pay and recover from the owner. No doubt the violation in those cases is defective license or fake license of driver. Here, the violation is allowing to sit on the trailor over sand load as the hamali without seating capacity and without permit. There is nothing to say the same is so fundamental for the insurer to be totally exonerated. Apart from it, the moment the deceased fell down from the tractor-trailor, he is a third party and no longer hamali even unauthorizedly traveling without seating capacity by sitting on the sand load to unload and the sand is even not connected for the purpose of agriculture; as per the settled expressions of different High Courts including of this Andhra Pradesh High Court viz., Thoznilalar Transport Company Vs. Valliammal and Others, , A. Subramani Vs. Mani and Others, NIC Vs. Savitridevi 1991 ACJ 1991 Delhi, Kanwar Shamsher Singh and Others Vs. Satbir Singh and Others, Delhi, Oriental Insurance Co. Ltd. and Another Vs. Edward D''Cruz and Others, , and of this Court in NICL Vs. Kurvo Yejji Mariamma 2007 (3) ALT 366.

Having regard to the above, without going into the other aspects as to by allowing a hamali to sit on the sand load of the tractor-trailor without permit and proceeding that violation is not so fundamental to exonerate, even taken for the time being of deceased was not authorized to travel on the sand load even as hamali and this at par with unauthorized passenger; the moment he fell down he is a third party and there was so far as third party risk concerned, the insurer cannot be exonerated from liability. No doubt as discussed supra, but for sitting on the sand load of the trailor from the negligence of the deceased as well as the driver of the tractor in so allowed, he could not fell down and could not remorsed to say the accident could not be occurred; thereby there is 40% negligence on the part of the deceased as well as the tractor driver also in allowing the deceased hamali for unloading in traveling by sitting on the sand load and fell therefrom but the remaining 60% is from the sheer negligence of the driver, as after fall, the vehicle ran over, being a third party for the insurer and the owner of the vehicle to be jointly liable as respondents to the claim.

Now coming to the compensation awarded by the tribunal of Rs. 2,82,000/- as claim concerned, the age of the deceased was 25 years. The claim is under Section 166 of the M.V. Act. As per Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, for a person aged up to 25 years multiplier 18 and 26 to 30 it is 17. Even taken the age of the deceased above 25 years, it is just to take 17 and coming to the earnings of the deceased as hamali, minimum of Rs. 3,000/- p.m. is taken as per Lata Wadhwa and Others Vs. State of Bihar and Others, as claimed by the claimants and if 1/4th deducted for personal expenses out of it the contribution is Rs. 2,250/- p.m. x 12 x17 (multiplier), it comes to Rs. 4,59,000/-. And even 60% of the liability of the insurer and insured out of it (after deducting 40% negligence of the deceased) it comes to Rs. 2,75,400/-. What the Tribunal awarded is only Rs. 2,72,000/-. Apart from it loss of consortium the 1st claimant is entitled to Rs. 1,00,000/-, towards funeral expenses an amount of Rs. 25,000/-, care and guidance to the two minor children of Rs. 20,000/-, towards loss of estate minimum of Rs. 5,000/-. It all comes to Rs. 4,22,000/. It is there from what the Tribunal awarded of Rs. 2,82,000/- with interest at 7.5% per annum is no way excessive and for this Court while sitting in appeal there is nothing to interfere. Accordingly, point No. 1 is answered.

POINT No. 2:

In the result, the appeal is partly allowed holding that for the deceased even the policy covers the risk as hamalie under insured for loading and unloading of sand, even not proved as same is connected with agriculture purpose and not having permit to sit on said sand load to travel and there from unauthorized; the moment fell down he was a third party and later when run over by trailor, insurer is also liable to indemnify insured for the third party risk and to the extent of 60% liability for 40% shown contribution by deceased, by confirming the amount awarded by the Tribunal. There is no order as to costs.

Miscellaneous petitions, if any pending in this appeal, shall stand closed.