The Oriental Insurance Co. Ltd. vs Vadde Thimmanna, S. Abdul Subur [died] and S. Khatoon Bee

L. Narasimha Reddy

This appeal is filed by the Oriental Insurance Company Limited, represented by its Divisional Manager, Kurnool against the judgment and decree in M.V. O.P. No . 426 of 2000, DATED 01.07.2002, on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Kurnool. The 1st respondent herein filed O.P. No. 426 of 2000 alleging that himself and others boarded a Tractor-Trailer bearing No.AP21T 1285 & 1286 belonging to the 2nd respondent by name Abdul Suboor, to go to their Village from the Mines. It was stated that the driver of the vehicle drove it in a rash and negligent manner and that the same has resulted in an accident. The trailer is said to have over turned. The 1st respondent/petitioner sustained multiple injuries and fractures to his both hands.- A case in Crime No.131 of 98 was registered in Nandi Kotkur Police Station. He claimed the compensation of Rs. 1,50,000/-.

The owner of the vehicle died during the pendency of the O.P. His Legal Representative, namely, the 3rd respondent was brought on record, as respondent No. 3. However, he remained ex-parte . The appellant alone contested the O.P. On behalf of the 1st respondent, PWs 1 and 2 were examined and Exs.A1 to 3 were marked. On behalf of the appellant, its Assistant Administrative Officer was examined as RW1 and copy of the Insurance Policy was marked as Ex.B1. On consideration of the oral and documentary evidence, the Tribunal awarded compensation of Rs. 70,000/- with 9% interest thereon. The 1st respondent was permitted to withdraw a sum of Rs. 25,000/- and balance of Rs. 45,000/- was ordered to be kept in Fixed Deposit in any Nationalised Bank for a period of five years.

The learned Standing Counsel for the appellant submits that the Tractor-Trailer was not supposed to be used as a passenger vehicle and the 1st respondent herein was an unauthorized passenger therein. Placing reliance upon the judgments of the Supreme Court, he submits that whatever may be the basis for awarding the compensation against the owner of the vehicle, there is no justification for the Tribunal in making the appellant herein liable to meet the same.

The learned counsel for the 1st respondent on the other hand submits that the controversy that existed as to the liability of the Insurance Company to satisfy the claims arising out of the death or injuries to unauthorized passenger has been set at rest by the Supreme Court in M/s National Insurance Co. Ltd., vs. Baljit Kaur and Others 2004 (1) Decisions Today (sc) and in view of the same, the appellant is under an obligation to satisfy the claim.

It is not in dispute that the vehicle that was involved in the accident is not meant to transport passengers. The 1st respondent has travelled in the vehicle and sustained injuries in an accident that took place on 24.12.1998. The vehicle was insured with the appellant The Judgment of the Tribunal indicates that the legal representative of the 1st respondent who was added as 3rd respondent remained ex-parte .

In the recent past, the Supreme Court had an occasion to deal with the liability of the Insurance Companies to satisfy the claims arising out of the injuries or death of unauthorized travellers in non-passenger vehicles. In a decision reported in New India Assurance Company Vs. Shri Satpal Singh and Others, , the Supreme court held that the Insurance Companies are liable to satisfy the claims arising out of death or bodily injuries to passengers in goods vehicle. This, however, was reversed by the Supreme Court in New India Assurance Co. Ltd. Vs. Asha Rani and Others, The question as to whether the Law laid down by the Supreme Court in New India Assurance Co. Ltd. Vs. Aasha Rani (Supra-3) is prospective or retrospective was dealt with in M/s. National Insurance Co. Ltd., vs. Baljit Kaur & Others (Supra-1) and it was held that the same is prospective in effect and cannot be retrospective.

It was further observed that the basic responsibility shall rest with the owner of the vehicle in such cases. In cases decided prior to the Judgment in New India Assurance Co. Ltd., Vs. Aasha Rani (Supra-3), the Insurance Company was directed to meet the liability, granting liberty to them to recover the amount from the owner of the vehicle, through the executing Court itself, without there being a necessity to file any fresh suit. The learned counsel for the appellant and respondents do not dispute that the facts of the present case are covered by the Judgment of the Supreme Court in M/s. National Insurance Co. Ltd., Vs. Baljit Kaur & Others (Supra-1).

The basic liability to pay the amount awarded by the Tribunal to the first respondent is with the 3rd respondent. The record discloses that after the death of the owner of the vehicle, the 3rd respondent was brought on record, but she did not participate in the proceedings at any stage. The learned counsel for the 1st respondent submits that the vehicle itself was disposed of and the whereabouts of the 3rd respondent were not known. Under these circumstances, the C.M.A. is dismissed, leaving it open to the appellant to recover the amount paid by it to the 2nd respondent, from the 3rd respondent, in accordance with law. No costs.