The New India Assurance Co. Ltd. v. N.Venkateswarlu

Judgment

(ON BEING MENTIONED) This Civil Miscellaneous Appeal, by respondent No.2 in M.V.O.P.No.260 of 2005, is filed against award, dated 15-11-2006, passed by the learned V Additional District Judge –cum- Chairman, Motor Accident Claims Tribunal and Fast Track Court, Kurnool at Nandyal (for short ‘the Tribunal’), wherein the Tribunal fastened a liability of Rs.1,20,000/-, on respondent No.2, together with interest @ 7.5% p.a., from the date of the Original Petition till the date of realization.

I have heard Smt.I.Mamu Vani, learned Counsel for the appellant, and Sri P.Nagendra Reddy, learned Counsel for respondent Nos.1 to 5. One Nari Gopula Venkatanna, who was a hamali, was engaged by respondent No.6- the owner of tractor and trailer, bearing registration Nos.AP 04 B 6286 and AP 04 B 6287, on 15-05-2005, for unloading the stones. He along with other hamalies was permitted to travel in the trailer of the tractor. In the course of its journey, the trailer turned turtle, resulting in causing injuries to the hamalies. Venkatanna later succumbed injuries, while undergoing treatment in Government Hospital, Allagadda. Respondent Nos.1 to 5, who are dependants of the deceased, filed M.V.O.P.No.260 of 2005 for compensation. The Tribunal determined a sum of Rs.1,58,000/- as compensation under various heads and apportioned liability between the appellant and respondent No.6. As noted above, according to the said apportionment, the appellant was made liable to pay a sum of Rs.1,20,000/-. The appellant has taken the plea before the Tribunal that as the deceased was travelling in trailer of tractor, he was an unauthorized passenger and that the policy taken in respect of the vehicle in question did not cover the risk of any passenger, travelling in the trailer. The Tribunal, however, rejected the said contention by purporting to rely upon a judgment of this Court in Sr.Divisional Manager, New India Assurance Co., Ltd., vs. K.Kiran and another[1] and some judgments of the Apex Court. At the hearing, the learned Counsel for the appellant submitted that the judgments of the Supreme Court in Oriental Insurance Company Limited vs. Brij Mohan and others[2] a n d United India Insurance Company Limited vs. Serjerao and Others[3] settled controversy, by holding that the Insurance Company is not liable for the death of or injuries caused to the labourers travelling in the trailers. A careful perusal of the above two judgments clearly supports the contention of the learned Counsel for the appellant. The facts of the present case are almost identical to United India Insurance Company Limited (3 supra), wherein the labourers travelling in the trailer, attached to a tractor, suffered injuries on account of the accident, and the Supreme Court, while reversing the judgment of the Tribunal and the High Court of Bombay (Aurangabad Bench) in fastening the liability on the Insurance Company, held at Para 8 as under: “So far as the question of liability regarding labourers traveling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd., vs. Brij Mohan and others (2007 (7) Scale 753) and it was held that the Insurance Company has no liability. In view of the aforesaid two decisions of this Court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matters afresh in the light of what has been stated by this in Smt.Yallwwas case (supra) and Brij Court Mohans case (supra).” The learned Counsel for respondent Nos.1 to 5 placed reliance on the judgment of the Supreme Court in Oriental Insurance Company Limited (2 supra) and contended that, in the said judgment, the Supreme Court, while following the judgment in United India Insurance Company Limited (3 supra), however, directed that the Insurance Company should satisfy the award and realize the same from the owner of the tractor. This Court, after hearing the learned counsel for the parties, pronounced judgment in open Court on 19-2- 2010, holding that the Insurance Company is not liable for payment of compensation and the Tribunal was directed to return the compensation deposited by the appellant- Insurance Company. However, before the said order was signed, this Court heard MACMA No.1355 of 2006, wherein an identical issue was raised. The learned counsel appearing for the respondent-claimants in that case advanced his contentions based on the judgment of a three Judge Bench of the Supreme Court in National Insurance Company Limited Vs. Swaran Singh and others[4]. In view of the elaborate submissions made in that case, judgment was reserved after completing the hearing. As the Judgment in Swaran Singh (4 supra) was not placed before this Court, at the time of hearing of the present case, this Court had no occasion to deal with the said judgment. After a detailed consideration of the judgment in Swaran Singh (4 supra) this Court in MACMA No.1355 of 2006 had come to the conclusion that the reasonable way of understanding judgment in Swaran Singh (4 supra) was that it has left discretion to the Tribunals and Courts to give appropriate directions, depending upon the facts and circumstances of each case, on the aspect of Insurance Companies having deposit compensation amounts even where their defence is accepted by the Courts. On the basis of the said conclusion, this Court, in MACMA No.1355 of 2006 felt it appropriate to permit the claimants therein to retain the amount of Rs.75,000/-, permitted to be withdrawn by them under the interim order passed by this Court, pending the CMA., and also to withdraw the balance amount of compensation deposited by the Insurance Company. The claimants were given liberty to recover the rest of the compensation from the owner of the tractor-trailer. In order to maintain parity and consistency, this Court felt it necessary to pass an order in line with the above mentioned order, in this case as well. Therefore, this Court posted the appeal “for being mentioned”. After hearing the learned counsel for the parties, it is felt appropriate to dispose of the appeal in the following terms: On 2-3-2007 this Court, while admitting the appeal, granted stay on condition of the appellant depositing 1/2 of the compensation awarded by the Tribunal. Therefore, I am of the view that in the interests of justice respondents 1 to 5-claimants shall be permitted to withdraw the amount already deposited. The appellant is not liable to deposit further amount towards balance compensation. Respondents 1 to 5 are permitted to recover rest of the compensation amount from respondent No.6-owner of the tractor-trailer. It is needless to observe that the appellant is entitled to recover the amount deposited by it towards the compensation awarded by the Tribunal from respondent No.6. The MACMA is accordingly allowed. No order as to __________________________ C.V. NAGARJUNA REDDY, J. costs. Dt: -03-2010 Lur/MNR [1] 2006 (6) ALT 1 [2] 2007 (7) Scale 753 [3] 2007 AIR SCW 7280 [4]) 2004(2) ALD 36 (SC).