IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.NO.3 OF 2006 Date:18.12.2009. Between:- The United India Insurance Co., Ltd., Rep.by its Divisional Manager, Guntur. ..Appellant/Respondent No.2 And Bandala Subbaiah and others .. Respondents/Petitioners and Respondent No.1 JUDGMENT:- This appeal is directed against the order dated 15.07.2005 passed in O.P.No.680 of 2000 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal-cum-I Additional District Judge, Guntur (for short, “The Tribunal”) wherein the claim of respondent Nos.1 to 6 herein was allowed awarding compensation of Rs.1,54,000/- with interest at 9% per annum from the date of the petition till realisation. 2. Heard learned counsel for the appellant and learned counsel for respondent Nos.1 to 6. Perused records. 3. Respondent Nos.1 to 6 filed the claim application seeking compensation of Rs.1,80,000/- on account of the death of the deceased Bandela Soury, who died in a motor vehicle accident that occurred on 08.05.2000 near Kasipadu village, Pedakurapadu Mandal. Claimant No.1 is the father, claimant No.2 is the wife and claimant Nos.3 to 6 are the children of the deceased. According to them, the deceased along with other coolies boarded a lorry bearing No.APL 2822 at Amaravathi village to go to Pedakurapadu for unloading purpose and when the lorry came between Kasipadu and Parasa village, it dashed against a tree, on account of the rash and negligent driving by its driver, and over turned, resulting in the death of the deceased on the spot. It is further pleaded that the deceased was aged 35 years and was earning Rs.90/- per day as a coolie. A case in Crime No.21 of 2000 was registered by Pedakurapadu Police Station against the owner of the lorry. 4. The owner of the lorry-respondent No.7 herein remained exparte. The appellant-insurer filed a counter opposing the claim and denying their liability to pay the compensation. 5. During the enquiry, P.Ws.1 and 2 were examined and Exs.A-1 to A-4 were marked on behalf of the claimants. R.W.1 was examined and Ex.B-1-copy of the policy was marked on behalf of the appellant-insurer. 6. On a consideration of the evidence available on record, the Tribunal held that the deceased was an unauthorized and gratuitous passenger in the lorry. The Tribunal further held that the claimants are entitled for a compensation of Rs.1,54,000/-. The Tribunal further directed that the appellant-insurer shall pay the compensation and recover the same from the owner of the vehicle. Aggrieved by the same, the insurer filed the present appeal. 7. As seen from the impugned order of the Tribunal, the evidence on record would establish that the deceased along with others got down from a bus and thereafter boarded the lorry and sat on the load of sand to reach their place of work. It is, therefore, not a case where the deceased was employed as a labourer to work on the lorry, but it is a case where he was traveling in the lorry along with others to reach his place of work. The deceased was, therefore, an unauthorized and gratuitous passenger traveling in the lorry, which is a goods vehicle. In the Judgments of New India Assurance Co.Ltd. Vs. Asha Rani[1], National Insurance Co.Ltd. Vs. Bommithi Subbhayamma and others[2] and National Insurance Co.Ltd. Vs. Rattani and Others[3], the Apex Court held that the insurer cannot be held liable for payment of compensation in case of death or injury of a person, who is unauthorized and gratuitous passenger in a goods vehicle and whose risk is not covered by the terms and conditions of the policy. 8. The direction of the Tribunal that the insurer shall pay the amount and recover the same from the owner of the vehicle is, therefore, unsustainable, as no liability can be fastened with the appellant-insurer, as the deceased was unauthorized and gratuitous passenger, and further, the risk in respect of the deceased is not covered by the policy at all. The said direction given by the Tribunal that the appellant-insurer shall pay the amount, and later, recover the same from the owner of the vehicle is, therefore, liable to be set aside, and is accordingly, set aside. 9. It is stated that in pursuance of the interim order dated 04.01.2006 passed in M.A.C.M.A.M.P.No.4 of 2006, the appellant has deposited half of the decretal amount with costs and interest and by virtue of the interim order dated 28.04.2006 passed in M.A.C.M.A.M.P.Nos.1900 and 4 of 2006, claimant No.2 had withdrawn a sum of Rs.25,000/-. Having regard to the fact that the claimants are poor villagers and it may not be possible for them to repay the amount at this length of time, it is directed that the appellant may not recover the amount already withdrawn from the claimants. The appellant is, however, at liberty to recover the said amount from the owner of the vehicle. The claimants are also at liberty to recover the balance amount from the owner of the vehicle. The appellant-insurer is entitled for refund of the balance amount lying in deposit. The impugned Award is modified accordingly. 10. In the result, the appeal is allowed, as stated above. There shall be no order as to costs. _________________ G.V.SEETHAPATHY, J 18th December, 2009 AMD [1] 2003 ACJ 1 (SC) [2] 2005 ACJ 721 [3] I (2009) ACC 417 (SC)