THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A. C.M.A. No.5230 of 2008 Date :09-07-2010 Between : The New India Assurance Co.Ltd., rep. by its Regional Manager, 1st Floor, 3-0, 2A Opp: SBH Bank, Habsiguda, Hyderabad. .. Appellant And Begari Nawaz and another .. Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A. C.M.A. No.5230 of 2008 JUDGMENT: This is an appeal filed by the Insurance Company challenging the Award in M.V.O.P.No.840 of 2005, dated 30-07-2007 on the file of the Special Judge for Trial of Offences under S.C./S.T. (POA) Act-cum-V Additional District & Sessions Court at Medak in Sanga Reddy (for brevity, ‘Tribunal’) whereunder the Tribunal awarded Rs.33,000/- with interest at 7.5% per annum as compensation in favour of the first respondent herein (claimant) fastening liability jointly and severally against the appellant herein (Insurance Company) and the second respondent herein. On 21-12-2003, the first respondent/claimant was proceeding along with his utensils to Hyderabad in a DCM van bearing registration No.AP-9W- 7150 of the second respondent herein. The driver of the van in order to overtake a bus of the R.T.C. drove the vehicle in a rash and negligent manner and in the process dashed against a lorry bearing No.ATT 3515, which was coming in the opposite direction. The claimant received grievous injuries. He, therefore, filed the O.P. and sought for a compensation of Rs.1,00,000/- against the Insurance Company and the second respondent herein jointly and severally. The second respondent herein remained ex parte. The Insurance Company opposed the claim and denied rash and negligence and took the plea that the claimant was travelling in the vehicle as a gratuitous passenger and as such it is not liable to pay the compensation. The Tribunal formulated the issues whether the accident occurred due to rash and negligent driving of the driver of the offending vehicle and whether the claimant was entitled for compensation and from whom. The claimant examined himself as P.W.1 and Dr.Y.Surender Rao was examined as P.W.2. EXs.A1 to A7 were filed on behalf of the claimant. The Insurance Company examined its Administrative Officer as R.W.1 and filed Ex.B1 - Insurance Policy. On the basis of the evidence of P.W.1 and Exs.A1 to A3, the Tribunal held that the Driver of the offending vehicle was rash and negligent and that the accident occurred due to the fault committed by him. On the basis of the evidence of the claimant and Ex.A4 - Injury Certificate, Ex.A6, Discharge Card from the Gandhi Hospital, Ex.A7, X-Ray Film and on the basis of the evidence of P.W.2, the Tribunal held that the claimant sustained injuries viz., swelling, pain, tenderness, and deformity of the left thigh knee joint and closed displaced fracture shaft M/3 left femur and abrasion of sizes of 9 x 2 cms near left knee. The claimant was in the Hospital for treatment as in-patient for 15 days from 21-12-2003 to 05-01- 2004. The Tribunal estimated and awarded Rs.33,000/- towards compensation for the said injuries. The Tribunal did not accept the plea of the Insurance Company to exempt it from the liability. Heard both the learned counsel. The only contention raised in this appeal is that the claimant was a gratuitous passenger in the offending vehicle, a goods carrier, and as such it cannot be made liable to pay the compensation. In support of the said contention, the learned counsel for the Insurance Company placed reliance on the Judgment of this Court in Vachala v. V.R.Kumar[1] and the judgment of the Apex Court in New India Assurance Co. Ltd. v. Asha Rani[2]. On the other hand, the contention on behalf of the claimant was that the claimant was not a gratuitous passenger, but he was the owner of the goods, and as such the Insurance Company is also jointly liable to pay the compensation. The learned counsel placed reliance on judgment of this Court in Oriental Insurance Co., Ltd., Cuddapah v. Yarava Lakshmi Devi[3]. This Court in Oriental Insurance Co., Ltd., Cuddapah v. Yarava Lakshmi Devi’s case (supra) considered an identical question and categorized the cases in three categories viz., (i) the passengers travelling in goods vehicles, which met with an accident while 1939 Act was in force; (ii) the passengers in goods vehicles after coming into force of 1988 Act; and (iii) the passengers travelling in goods vehicles, which met with accidents after coming into force of Central Act No.54 of 1994, with effect from 14-11-1994 and referred the judgments of the Apex Court in Mallawwa v. Oriental Insurance Company Limited[4], New India Assurance Company Limited v. Satpal Singh[5] and New India Assurance Co. Ltd. v. Asha Rani[6]. The learned Judge placing reliance on the judgment in New India Assurance Co. Ltd. V. Asha Rani (supra) which overruled the judgment in New India Assurance Company Limited v. Satpal Singh (supra), held as follows : “Thus, though the owner of the goods travelling in a goods vehicle is not covered under the Insurance Policy, after 14-11-1994 subsequent to amendment of Section 147(1)(b)(i) of the 1988 Act, even the owner of the goods travelling in a goods vehicle is considered as third party covered under the policy. Thus, categories 2 and 3 passengers are covered by the dicta in Asha Rani’s case (supra). In these cases, the accident occurred on 14-10-1996 and therefore, even though they are passengers travelling in the goods vehicle as owners of the goods, they are covered under the policy as per Section 147(1)(b)(i) of 1988 Act.” The Judgment of this Court in Vachala’s case cited by the learned counsel for the Insurance Company is distinguishable. In the said case it is not clear whether the accident took place before or after 14-11-1994. Further, the seating capacity of the offending vehicle was only one i.e., the driver alone could travel in the vehicle, whereas the deceased was also being carried in the said vehicle. The observation of the Court that “when carrying of passengers in the offending vehicle is not covered by the Act, question of Insurer covering the risk of the owner of the goods or an authorized representative of the owner of the goods travelling along with the goods in the offending vehicle does not arise”, was made in the context of the facts of that case and the in the context of the specific contention that Ex.B2, which was a true extract of the permit in respect of the offending vehicle, authorized only driver to travel therein and the question of anybody else (apart from the driver) travelling in the offending vehicle, either as a owner or authorized representative of the owner of the goods does not arise. This decision, therefore, is of no avail. Therefore, in the light of the judgment in Oriental Insurance Co., Ltd., Cuddapah v. Yarava Lakshmi Devi’s case (supra) it has to be held that after 14-11-1994 subsequent to amendment of Section 147(1) (b)(i) of the 1988 Act, the owner of the goods travelling in a goods vehicle is considered as third party covered under the Policy. The next question that arises for consideration is whether the claimant in the instant case was a gratuitous passenger or the owner of the goods. It is the specific case of the claimant that he is the owner of goods and travelling along with the utensils, rice etc., to go to Miyapur, Hyderabad. P.W.1 in his evidence stated that he engaged the D.C.M. van on rent basis and loaded the vehicle with utensils and rice etc., to go to Miyapur from Suraram village and when the vehicle reached the village limits of Lakdaram village, Patancheru, the driver drove the vehicle in a rash and negligent manner and while overtaking the R.T.C. Bus and proceeding in opposite direction and due to which the D.C.M. van was damaged and he sustained fracture to his left leg and sustained grievous injuries to his right leg. He also spoke to the manner in which he underwent medical treatment. In the cross examination, he denied the suggestion that he was travelling as a passenger along with another. The Administrative Officer of the appellant-Insurance Company was examined as R.W.1. In his evidence, he deposed that the claimant was travelling as unauthorized passenger and as such there was violation of the policy conditions. In his cross-examination, he stated that he did not know what the claimant was doing and that in every accident case, investigation was done, but he did not file any report. He denied the suggestion that the claimant was a labourer, sitting in the cabin of the vehicle which was loaded with rice and utensils from his village. Except taking the stand that the claimant was a gratuitous passenger and examining R.W.1, no other evidence was adduced to support the contention that the claimant was gratuitous passenger. The Tribunal rightly held that the evidence of R.W.1 does not support the case of the appellant-Insurance Company. Ex.B-1 is the Insurance Policy which was valid from 17-09-2003 to 16-09-2004. The accident occurred on 21-12-2003. Therefore, Ex.B-1, policy, was in force. A perusal of the policy would show that in addition to basic premium towards the compulsory personal accident, the owner-cum-driver and W.C. to four employees was paid. Thus, it must be held that the appellant-Insurance Company is also jointly and severally liable to pay the compensation. There are no merits in the appeal and is accordingly dismissed. There shall be no order as to costs. ____________ 9th July, 2010 Kvr/skmr [1] 2004 (5) ALT 460 [2] (2003) 2 SCC 223 [3] 2009 (4) ALD 491 [4] (1999) 1 SC 403 [5] (2000) 1 SCC 237 [6] (2003) 2 SCC 223