THE HON’BLE SRI JUSTICE D.S.R.VARMA Civil Miscellaneous Appeal No.47 of 2003 Date: 01-7-2010 Between The New India Assurance Company Limited, Rep. by its Branch Manager, Branch Office, 19/91, Madras Road, Cuddapah … Appellant/Respondent No.2 and 1. Ande Machugari Pedda Venkatanna and another … Respondents/Claimants 3. P.Shafi Khan … Respondent/Respondent No.1 THE HON’BLE SRI JUSTICE D.S.R.VARMA Civil Miscellaneous Appeal No.47 of 2003 Oral Judgment: Despite service of notice, none appears for respondent No.3. 2. Heard Sri Addepalli Suryanarayana, learned standing counsel for the appellant-insurer and Sri K.Rathanga Pani Reddy, learned counsel for respondents 1 and 2. 3. Appeal by the insurer challenging the order and decree, dated 12-9-2002, in M.V.O.P.No.717 of 2000, passed by the Chairman, Motor Accidents Claims Tribunal cum District Judge, Cuddapah, awarding a sum of Rs.3,00,000/- as claimed by the claimants. 4. The appellant herein is the insurer, respondents 1 and 2 are the claimants and respondent No.3 is the insured. 5. The particulars of the accident are not worth mentioned, inasmuch as, there is no controversy. 6. The only question is as to whether the deceased falls within the category of a gratuitous passenger or not ? 7. In this connection, the basic facts, which are necessary, are that on 13-01-2000 the deceased A.Venkatapathi was travelling in the lorry bearing registration No.AP04T-1207 belonged to the insured from Mydukur to Chinna Singanapalli village for loading onion in the lorry and at about 1.30 p.m., when the lorry reached near a dhaba hotel on Mudukur – Duvvur road, the driver of the lorry drover it in a rash and negligent manner with high speed and lost control over the lorry, as a result of which the lorry turned turtle and the deceased sustained multiple injuries and died on the spot. 8. The contention of the insurer is that the deceased was a gratuitous passenger, inasmuch as, the vehicle was insured for three people only. There is no clarity as to who are those persons. 9. However, the Tribunal had recorded a finding basing on the evidence on record that insurance was being paid for a sum of Rs.50/- for “one non fare paid passenger” and the deceased was a third party and in addition to the said amount, a sum of Rs.2,779/- was being paid for third party risk. 10. So, it is obvious that an additional sum of Rs.50/- for “one non fare paid passenger” was being paid and the death of the deceased was the only death. Therefore, the additional amount of Rs.50/- towards “one non fare paid passenger” shall have to be extended to the deceased and accordingly, the deceased cannot be treated as a gratuitous passenger. 11. In other words, since the owner of the vehicle was paying insurance for “one non fare paid passenger”, the insurance is covered to one passenger, who was travelling in the vehicle without paying any fare and not being either the owner or the cleaner of the vehicle. 12. Therefore, the deceased has to be brought into the category covered by the terms and conditions of the Insurance Policy. It is not automatic to identify the deceased or the injured as a gratuitous passenger. It should be established by the respondents in the M.V.O.P., that the terms and conditions of the policy do not cover any such injured or a dead person, in order to bring such person into the category of a gratuitous passenger. 13. In view of the matter, the deceased cannot be termed as a gratuitous passenger and therefore, I do not find any infirmity or illegality, much less the irrationality, in awarding the claim. In fact, the claim was for a sum of Rs.3,00,000/- only. But, if the earnings of the deceased are calculated, it is something beyond Rs.4,00,000/-. However, since the claim itself was made for a sum of Rs.3,00,000/-, compensation has been confined only to that extent. 14. For the aforementioned reasons, the appeal is liable to be dismissed. 15. In the result, the appeal is dismissed, confirming the order under appeal. _______________________ JUSTICE D.S.R.VARMA 01st July, 2010. Ak THE HON’BLE SRI JUSTICE D.S.R.VARMA Civil Miscellaneous Appeal No.47 of 2003 01st July, 2010. (Ak)