THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.3277 of 2005 Date:04.12.2009 Between: The National Insurance Company Limited. ..Appellant. and Kosamala Lakshmana Rao and others. ..Respondents. THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.3277 of 2005 ORDER: This appeal is directed against the order dated 15.07.2005 in O.P.No.204 of 2001 on the file of the Court of II Additional District Judge-cum-Motor Accident Claims Tribunal (Fast Track Court), Srikakulam, whereby the claim of respondent Nos.1 to 4 herein was allowed awarding compensation of Rs.2,00,000/- with interest at 7½ % per annum from the date of the petition. Respondent Nos.1 to 4 herein filed the claim petition seeking compensation of Rs.2,00,000/- on account of death of Kosamala Anasuya, who died in a motor vehicle accident that occurred on 27.01.2000. The first claimant is the husband and claimant Nos.2 to 4 are the children of the deceased Anasuya. According to them, the deceased was working as Kalasi in the tractor trailor bearing No.AP 30 T 1216 and APS 4871 and that on 27.01.2000 while she was returning in the trailor after loading the stones, the vehicle turned turtle due to the rash and negligent driving by the driver, as a result of which the deceased fell down, sustained multiple injuries and subsequently died. It is further pleaded that the deceased was earning Rs.2,500/- per month as kalasi. The owner of the vehicle remained ex parte. The appellant-insurer filed a written statement opposing the claim petition and denying their liability. During the enquiry, P.Ws.1 and 2 were examined and Exs.A-1 to A-5 were marked on behalf of the claimants and no oral or documentary evidence was produced by the appellant-insurer before the Tribunal. In the present appeal, the appellant-insurer filed C.M.A.M.P.No.6061 of 2009 under Order XLI Rule 27 C.P.C. seeking permission to file a copy of the insurance policy and to exhibit the same. The said petition is ordered today and the copy of the policy is received and marked as Ex.B1 in the appeal. On consideration of the evidence available on record, the Tribunal held that the accident occurred due to rash and negligent driving of the tractor trailor. The said finding is not seriously challenged in this appeal. The Tribunal also held that the claimants are entitled for total compensation of Rs.2,00,000/-. The quantum of compensation as awarded by the Tribunal is also not seriously disputed. The only contention raised by the learned counsel for the appellant-insurer is that the deceased was unauthorized gratuitous passenger and hence no liability can be fastened on the appellant- insurer as the risk in respect of the deceased is not covered by the policy. He would further contend that even otherwise assuming that the deceased was travelling as a labourer as claimed by the claimants, still the risk in respect of such labourer is not covered by the policy and hence the appellant-insurer is not liable. A perusal of the policy, copy of which is filed in this appeal, would show that it was an act policy and the seating capacity is only one, which is meant for the driver. The premium of Rs.15/- was collected to cover the risk of the driver besides the basic premium payable towards the risk for the third parties. No additional premium was collected in respect of any other person, whether the passenger or labourer. Thus, the policy covers the risk only in respect of the driver apart from the third parties and no other person. The deceased who was travelling in the trailor is not third party. The claimants pleaded that the deceased was engaged as a labourer for the purpose of loading and unloading in the said tractor trailor. In the relevant column in the claim petition pertaining to the occupation and employment of the deceased, it is noted as “does not arise”. Though in the body of the claim petition, it is stated that the deceased was a labourer, it is not specifically pleaded that she was engaged as a labourer in this particular tractor and trailor. In the absence of any evidence to show that the deceased was engaged as a labourer for the purpose of loading and unloading in the tractor trailor, the deceased remains an unauthorized gratuitous passenger. The risk in respect of such person is not covered by the policy at all. Even otherwise assuming that the deceased was a labourer engaged for the tractor trailor, still the risk in respect of such labourer is also not covered by the policy as additional premium was paid only respect of driver and none-else. In Ramashray Singh vs. New India Assurance Co. Ltd.[1], the Apex Court held that insurance policy only covers the person or classes of persons specified in the policy and that a comprehensive policy merely means that the loss sustained by such person/persons will be payable upto the insured amount irrespective of the actual loss suffered. In the above case, the deceased was working as kalasi and it was contended that the policy was a comprehensive one and would cover all risks including the death of kalasi. Rejecting the said submission, the Apex Court held as under: Consequently, although the appellant’s claim under the insurance policy arose under the Workmen’s Compensation Act, since the concerned employee was not engaged in the capacity of driver in respect of whom alone premium was paid apart from the passengers, his claim is unsustainable. In view of the principles laid down in the above decision and also in view of the fact that the risk of the deceased is not covered by the policy, be she unauthorized gratuitous passenger or labourer, no liability can be fastened on the appellant-insurer for payment of compensation. It is open to the claimants to recover compensation from the owner of the vehicle. It is stated that the claimants already withdrew Rs.25,000/- deposited towards no fault liability. If that is so, having regard to the fact that the claimants are poor persons and it would be difficult for them to repay the said amount at this length of time, the amount already withdrawn by the claimants may not be recovered from them. It is open to the appellant-insurer to recover the said amount from the owner of the vehicle. In the circumstances, the impugned award is modified duly exonerating the appellant-insurer from any liability to pay the compensation. In the result, the appeal is allowed as stated above. No costs. __________________ G.V.SEETHAPATHY, J 04th December, 2009 Documents Marked Ex.B.1: Insurance Policy GHN [1] 2003 ACJ 1550