IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No. 3541 of 2003 Between: Oriental Insurance Co. Ltd., Vijayawada .. Appellant AND Saki Subbamma (died) and others .. Respondents JUDGMENT: This appeal is directed against the award in M.V.O.P. No.71 of 2000 on the file of the Motor Accidents Claims Tribunal- cum-II Additional District Judge, Vijayawada, dated 05-08-2002. Saki Sreenu, aged about 20 years was travelling in bus No.TN079 9184 on 30-04-1999 when the bus was involved in an accident at about 8.40 P.M. allegedly due to the rash and negligent driving by the driver. Saki Sreenu, claimed to be travelling as a cleaner in the vehicle, died and his mother originally filed the claim with her legal representatives being brought on record on her death during the pendency of the claim. The claim for compensation was made against the driver, owner and insurer of the bus stating that the mother and her legal representatives were depending on Sreenu for their livelihood. They sought for a compensation of Rs.1,00,000/- with interest and costs. The claim against the driver, the 1st respondent, was dismissed before the Tribunal for default, while the owner of the bus, the 2nd respondent, remained ex parte. The insurer/3rd respondent claimed that there was no necessity to appoint any cleaner for the bus and at any rate, the risk of the cleaner was not covered by the insurance policy. Apart from denying the allegations of the claimants, the insurer desired the claim to be negatived on the strength of absence of any liability under the insurance policy for the death of the cleaner. The Tribunal framed issues about the manner of the accident, the age and income of the deceased and the entitlement of the claimants for compensation. During the enquiry, P.W.1 and R.W.1 were examined and Exs.A.1 to A.4 and B.1 were marked. The Tribunal rendered the impugned award accepting the contents of Ex.A.1 first information report as proving the death of Saki Sreenu in the accident that occurred due to the rash and negligent driving by the 1st respondent. The non-examination of the 1st respondent and the absence of any contrary evidence to the claim of P.W.1 also led to that conclusion and from Ex.A.2 post-mortem certificate, the Tribunal concluded the deceased to be aged 20 years. A decision of this Court cited before the Tribunal for the principle that the insurer cannot be liable in the absence of coverage of the cleaner by the policy, was distinguished by the Tribunal stating that Ex.B.1 insurance policy did not specifically exclude the risk of the cleaner and that Ex.B.1 policy covering 55 passengers can also be construed to be covering the deceased, to prove whose employment as a cleaner, the claimants did not produce any document. On the quantum of compensation, the Tribunal assessed the income of the deceased at Rs.1,500/- per month, deducted one-third towards his personal expenses and on the annual loss of dependency of Rs.12,000/-, the Tribunal applied a multiplier of 12.79. The Tribunal also noted that the claim itself was only for Rs.1,00,000/- and hence, restricted the same to such a sum with interest at 9 per cent per annum and costs. The claim was allowed against respondents 2 and 3 jointly and severally. The insurer is before this Court contending that when Ex.B.1 insurance policy did not cover the risk of a cleaner and when it was the specific claim that the deceased was a cleaner and not a passenger, no liability could have been fastened to the insurer. Claimants 2 to 4, who were impleaded as the legal representatives of the deceased and who were married and living separately, could not have been considered as dependents for the grant of any compensation and hence, the appellant desired the award to be reversed. Sri Naresh, Byrapaneni, learned standing counsel for the appellant, Sri P. Prabhakara Rao, learned counsel for the claimants and Sri T.S. Rayalu, learned counsel for the owner of the vehicle were heard. Sri Naresh Byrapaneni referred to the decision in New India Assurance Co. Ltd. v. Suraya Bee[1]. Sri T.S. Rayalu strenuously contended that the Tribunal itself came to the conclusion that there was no proof of the deceased being a cleaner on the vehicle and as Ex.B.1 policy covers the risk of 55 passengers, the deceased should be treated as a passenger, the liability in respect of whose death has to be indemnified by the insurer. The learned counsel also contended that the insurer itself pleaded that the deceased was not a cleaner and it cannot approbate and reprobate. While admitting the appeal, interim stay of execution of the award was granted on 11-08-2003 subject to deposit of half of the compensation awarded with interest and costs and as per orders on M.A.C.M.A.M.P. No.548 of 2011, dated 24-02-2011, the claimants were permitted to withdraw the said amount in deposit to the credit of the matter without furnishing any security. The point that arises for consideration in this appeal is about the presence or absence of liability for the insurer to compensate the dependents of the deceased under the terms of Ex.B.1 insurance policy. The finding of the Tribunal about the responsibility of the bus driver for the accident with his rash and negligent driving remained undisputed and though the bus was being run on hire by the Andhra Pradesh State Road Transport Corporation and the employee of the said corporation was driving the bus at the relevant time, the plea that the claim was bad for not impleading the Andhra Pradesh State Road Transport Corporation, did not find favour with the Tribunal and the said question was not agitated again by the insurer in the present appeal. Though a vague attempt was made by learned counsel for the owner of the vehicle to raise the same objections, no such contentions could have been considered in the absence of any pleading or proof or any cross- objection or cross appeal by the owner. In so far as Ex.B.1 insurance policy is concerned, its terms and conditions and the payment of premium for coverage of any risk evidently did not cover any cleaner of the vehicle. For the coverage of liability to the public, premium was paid only in respect of 55 passengers and the driver. The contractual liability could not have been extended to cover a cleaner who cannot be considered to be answering the description of either a passenger or a driver. Ex.A.3 Motor Vehicles Inspector’s report noted the deceased to be the cleaner of the vehicle and before making such an endorsement in his report, the official would have made due verification of such a statement and satisfied himself about the capacity in which the deceased was travelling in the vehicle. The earliest version in the first information report Ex.A.1 also was that the deceased standing on the footboard at the time of the accident was the cleaner of the vehicle. The evidence of R.W.1 was, of course, about there being no necessity for employment of a cleaner in the bus, but he did not specifically contradict the claim that the deceased was employed as a cleaner, as a matter of fact, at the relevant time. The evidence of P.W.1, of course, contained a suggestion on behalf of the insurer that the deceased was not working as a cleaner, but either the claimants, whose basis for their claim was that the deceased was travelling in the vehicle as a cleaner, or the owner, who did not file any pleading before the Tribunal and did not produce any evidence before it, can indulge in claiming that the statement of the insurer about the absence of necessity for employing a cleaner on the bus, should be equated to the insurer denying the employment of the deceased as a cleaner on the bus. In the written statement of the insurer also, a similar statement was made by it. But there was no specific contention that the deceased was not travelling in the vehicle at the relevant time as a cleaner. If the evidence on record and the contentions of the parties, thus, did not run counter to the conclusion that the deceased was travelling in the vehicle at the relevant time as a cleaner, the principle laid down by a learned Judge of this Court in New India Assurance Co. Ltd. v. Suraya Bee (1 supra) squarely applies to the facts of the present case. The learned Judge with reference to Section 147 of the Motor Vehicles Act, 1988 and the decision of the Apex Court in Ramashray Singh v. New India Assurance Co. Ltd. (2003 AIR (SC) 2877) concluded that unless and until extra premium is paid under a contract of insurance, cleaner is not covered under the policy. The liability fastened to the insurer by the Tribunal has to be, therefore, set aside. The insurer, of course, had already deposited half of the awarded amount with interest and costs, which was permitted to be withdrawn by the claimants without furnishing any security. To the extent of that money, the insurer will be entitled to recover the same from the owner of the vehicle without the necessity of being referred to any separate suit or other legal proceedings. In the peculiar circumstances of the case, the parties can, of course, be directed to bear their own costs. In the result, the award dated 05-08-2002 in M.V.O.P. No.71 of 2000 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Vijayawada is set aside against the appellant/3rd respondent and the said M.V.O.P. No.71 of 2000 is dismissed without costs against the appellant/3rd respondent. The appellant/3rd respondent is entitled to recover the amount deposited by it to the credit of the matter permitted to be withdrawn by the claimants without furnishing any security, from the owner of the vehicle/6th respondent in the appeal/2nd respondent in the claim petition without the necessity of being referred to any separate suit or other legal proceedings. The appeal is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 14-03-2011 Svv [1] 2009 (4) ALT 760