IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.4104 of 2003 Between: The New India Assurance Company Limited, Represented by its Divisional Manager, Kurnool .. Appellant AND Mallepu Gulikanna and others .. Respondents JUDGMENT: This appeal is directed against the award in MVOP.No.699 of 2000, dated 12-04-2002 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool, in pursuance of the common order in three claims before the Tribunal arising out of the same accident. Mallapu Nagesh, son of the claimants in O.P.No.699 of 2000 and others were travelling in a lorry No.AP-2V-276 on 24-02- 2000 to attend a marriage function at Nandavaram village. About 60 persons boarded the lorry, which met with an accident near C. Belagal village while returning from the marriage at about 6.30 P.M. Nagesh died on the spot and the parents sought for a compensation of Rs.2,00,000/- for the death of 20 year old Nagesh. The owner of the lorry resisted the claim contending that the insurer alone is liable to compensate, while the insurer contested the claims contending that the claimants have to prove their allegations and in any view, as the passengers in the lorry including Nagesh were unauthorized passengers not covered by the insurance policy, the insurer is not liable to pay the excessive compensation claimed. In each of the claims, the Tribunal framed issues about the responsibility for the accident and the entitlement of the claimants to compensation. During enquiry, it examined PWs.1 to 3 and marked Exs.A.1 to A.7 and B.1. The Tribunal, in the impugned common order, firstly accepted the contents of Ex.A.1-First Information Report and Ex.A.2-Charge sheet corroborated by PWs.1 to 3 to conclude that the accident took place because of the rash and negligent driving of the lorry. The Tribunal noted that Ex.B.1-Policy provided insurance coverage for the lorry and it observed that it is no doubt true that all the persons, who boarded the lorry, have nothing to do with any load in it and they were the passengers in a goods vehicle. However, in spite of the passengers being unauthorized passengers in a goods vehicle, the Tribunal made the insurer liable following the decision in New India Assurance Company v. Satpal Singh and others (AIR 2000 SC 235). In assessing the compensation in O.P.No.699 of 2000, the Tribunal followed the decision in Shanti Bai and others v. Charan Singh (1998 (5) SCC 359) and granted a compensation of Rs.1,50,000/- payable with interest at 12% p.a. from the date of petition till realisation and proportionate costs. The insurer challenged the said award in this appeal contending that in the light of New India Assurance Company Limited v. Asharani (2003 (1) ALD 18), the earlier precedent in Satpal Singh’s case got overruled and hence, the insurer is not liable for compensation on the findings of the Tribunal. As Sri B. Venkata Ratnam, learned standing counsel for the appellant, is unavailable, Sri Naresh Byrapaneni, learned standing counsel for the 2nd respondent-insurer, advanced his arguments on behalf of the appellant, while the same were resisted by Sri T. Rajendra Prasad, learned counsel for respondents 1 and 2, and Sri K. Rathangapani Reddy, learned counsel for the 3rd respondent- owner of the lorry. It is to be noted that while admitting the appeal, this Court on 27-08-2003 in CMAMP.No.19175 of 2003 ordered interim stay of execution of the award in O.P.No.699 of 2000, subject to the condition of the appellant depositing the entire amount awarded including interest up to date of deposit and costs into the Tribunal. By further orders in CMAMP.No.11988 of 2004 on 16-07-2004, this Court permitted the claimants to withdraw the amount deposited without furnishing any security. The point for consideration is whether on the findings of the Tribunal, the insurer could have been made liable to pay compensation? I n New India Assurance Company Limited v. Asharani[1], the Apex Court concluded that the decision in New India Assurance Company v. Satpal Singh and others (AIR 2000 SC 235) has not laid down the law correctly and should be overruled. Since the decision in Asharani’s case, there is absolutely no ambiguity about the non-liability of the insurer to indemnify the owner of the insured vehicle in respect of unauthorized passengers in a goods vehicle. The finding in the impugned award that all the persons, who boarded the lorry, had nothing to do with any load in it and they were the passengers in a goods vehicle was not challenged by the owner of the vehicle or the passengers or their legal representatives in any manner. The conclusion of the Tribunal in the impugned award that the deceased and the injured were unauthorized passengers in a goods vehicle clearly absolves the insurer from any liability under Ex.B.1-Policy. But, as the entire amount awarded including interest and costs was deposited by the appellant and was permitted to be withdrawn by the claimants, the principle of ‘pay and recover’ should be extended by permitting the appellant to recover whatever amount was paid from the owner of the vehicle without the necessity of being referred to any separate suit or any other legal proceedings. The quantum of compensation needs no interference having been fixed by the Tribunal following a binding precedent from the Apex Court. Accordingly, the award dated 12-04-2002 in MVOP.No.699 of 2000 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool, against the appellant is set aside and the said O.P. is dismissed against the appellant without costs and whatever amounts were paid or deposited by the appellant under the impugned award shall be recovered from the owner of the vehicle/3rd respondent herein without the necessity of being referred to any separate suit or any other legal proceedings. The appeal is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 03-03-2011 Ksn [1] AIR 2003 (Supreme Court) 607