Miscellaneous Appeal No. 4590 of 2003 · High Court · 2010

Rs.2 lacs on account of the death of Sri Nakka Baburao (hereinafter referred to as ‘the deceased’) on 04.06.2000, at about 04.00 a.m., near petrol bunk, N.H.5 road, Prathipadu Village. Respondents 1, 2 and 3 are wife, daughter and son respectively and Respondents 4 and 5 are parents of the deceased. According to the respondents, the deceased was employed with Respondent 6, who is the owner-cum- driver of the tractor bearing No. AP 5U 1472. On the date of accident, the deceased was travelling on the tractor driven by Respondent 6, who drove the vehicle in a rash and negligent manner and caused the accident. Respondents 1 to 5 claimed maintenance at that rate on the ground that the deceased was aged about 25 years at the time of accident and they are solely dependant upon his earnings. The appellant herein and Respondent No.6 have filed their respective counter-affidavits. Respondent No.6 stated in his counter that at the time of accident, his vehicle was stationed and he went to ease himself, then, a lorry came behind the tractor in a rash and negligent manner and dashed on its rear side, which, in turn, turned turtle and hence, the deceased, who was sitting on the tractor, fell down and died instantaneously. The appellant Insurance Company has stated in its counter that the claim of the respondents is excessive. Considering the above pleadings, the following issues have been settled for trial:

1. Whether Nakka Baburao died in road accident occurred on

04.06.2000 at 04.00 a.m. near Petrol Bunk on N.H.5 road, Prathipadu, Pentapadu Mandal, West Godvari District due to the rash and negligent driving of V.S.T. Power Tiller (Tractor) bearing No. AP 5U 1472 by the 1st respondent.

2. Whether the petitioners are entitled to any compensation, if so, to what amount and from whom?

3. To what relief? Before the Tribunal, the claimants have examined P.Ws.1 and 2 and got marked Exs.A1 to A4 and the Insurance Company examined R.Ws.1 and 2 and got marked Ex.B1 Insurance policy. The Tribunal, after elaborately considering the evidence, which is in the form of oral and documentary, has come to a conclusion that Respondent No.6, driver of the vehicle in question, had taken the deceased as a cooli on his tractor and therefore, he being the owner of the same, is liable to pay compensation. On the count of quantum of compensation, it has been held that since the deceased was aged about 25 years at the relevant point of time, which fact was not disputed, multiplier ‘17’ is applicable and therefore, Rs.10,000/- would be the probable income of the deceased per annum. The Tribunal accordingly awarded Rs.2,05,000/- towards compensation which includes Rs. 30,000/- towards the loss of estate and consortium and Rs.5,000/- towards transportation and funeral expenses. Insofar as the liability of the appellant insurance company is concerned, it has been held that in view of Ex.B1 policy, which is in subsistence, the appellant is also jointly liable with Respondent No.6. Questioning this part of the Award of the Tribunal, the present Appeal has been filed. Learned counsel for the appellant contends that as per the terms and conditions of the policy, Ex.B1, the vehicle in question has to be used only for agricultural purposes, whereas it was used for carrying banana, which attracts the commercial activities. Therefore, the learned counsel contends that the Tribunal erred in holding that the Insurance Company is also liable to pay the compensation. In support of its case, the learned counsel has placed reliance upon the ratio laid down by this Court in New India Assurance Company Limited, Ongole, v. S. Mariyamma[1]. There is no dispute with regard to the occurrence of the accident in question, so also the relationship of Respondents 1 to 5 with the deceased and his earning capacity at the time of accident. The limited controversy in this appeal is whether the Insurance Company is liable to pay the compensation, as held by the Tribunal, at all or not. Admittedly, Ex.B1, policy, a perusal of which makes it clear that it is an act policy and therefore, it will cover the risks of third parties, but not others. In fact, the deceased in this case was an employee under Respondent No.6, which fact has since been corroborated by the testimony of the witnesses. As per the policy conditions, the vehicle in question has to be used for agricultural purposes, but in the instant case, it was used for commercial purposes, i.e. for carrying banana load. Further, the decision on which the learned counsel for the appellant has placed reliance is to the effect that, the Insurance Company is not liable to pay compensation, if there is a restriction to use the vehicle and the vehicle was used violating the restrictions mentioned in the Insurance policy. Therefore, without examining the matter any further, in view of the dictum laid by this Court in the aforementioned case, I am of the opinion that the vehicle in question was used in breach of the policy conditions and therefore, the Insurance company is not liable to pay the compensation to Respondents 1 to 5. The Civil Miscellaneous Appeal is accordingly allowed, setting aside the Award dated 03.07.2003 in O.P.No. 689 of 2000 passed by the Motor Accidents Claims Tribunal-cum-District Judge, East Godvari at Rajahmundry, to the extent it held responsible the Insurance Company to pay the compensation. But however, it is made clear that the claimants are entitled to recover the amount of compensation from the owner-cum-driver of the vehicle in question i.e. Respondent No.6 herein. No costs. ___________________________ GHULAM MOHAMMED, J. 5th August 2010 THE HON'BLE SRI JUSTICE GHULAM MOHAMMED CIVIL MISCELLANEOUS APPEAL No.1943 of 2004 CVRK 17th June 2010 [1] 2003(2) ALD 921