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.1394 OF 2006 Date:26.11.2009. Between:- The Oriental Insurance Co.Ltd., rep.by its Divisional Manager, having its Divisional Office at Tirupati, Chittoor District. ..Appellant/Respondent No.2 And S.Chenchuramaiah and others .. Respondents/Petitioner Nos.1 to 3 and Respondent No.1 JUDGMENT:- This appeal is directed against the order dated 24.03.2006 passed in M.V.O.P.No.258 of 2004 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-III Additional District Judge, Tirupati wherein the claim of respondent Nos.1 to 3 was allowed awarding compensation of Rs.3,00,000/- with interest at 7.5% p.a. from the date of the petition. Heard the learned counsel for appellant and the learned counsel for respondent Nos.1 to 3. Perused the records. Respondent Nos.1 to 3 herein filed the claim application seeking compensation of Rs.3,00,000/- on account of death of the deceased S.Chenchukrishnaiah, who died in a motor vehicle accident that occurred on 04.08.2003. Claimant Nos.1 and 2 are the parents and claimant No.3 is the brother of the deceased. According to them, the deceased was going on a tractor and trailor belonging to respondent No.4 herein and when the vehicle reached Daminedu Harijanawada, on account of rash and negligent driving by its driver, the tractor and trailor dashed against the road side tree and over turned as a result of which, the deceased fell down and the vehicle ran over him and he died on the spot. A case was registered in Crime No.88 of 2003 against the driver of the tractor and trailor by Tiruchanoor police. The deceased was aged 18 years and was unmarried and he was doing coolie work of loading and unloading and earning Rs.150/- per day. The owner of the vehicle and the insurer filed counters opposing the claim and denying their liability to pay the compensation. During enquiry, P.Ws.1 and 2 were examined and Exs.A- 1 to A-4 were marked on behalf of the claimants. No oral evidence was adduced by the insurer and Ex.B-1-copy of the policy was marked. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the tractor and trailor by its driver. The said finding is not seriously disputed in this appeal. The Tribunal further held that the claimants are entitled for a total compensation of Rs.3,00,000/-. The appellant-insurer denies its liability for payment of the compensation on the ground that the deceased was unauthorized passenger in the tractor and trailor, which is a goods vehicle, therefore, the insurer is not liable to pay any compensation. Even otherwise, if the deceased is considered to be a coolie, still the risk in respect of any person, other than the driver, is not covered by the policy-Ex.B- 1 and on that ground also, the insurer is not liable to pay the compensation. A perusal of Ex.B-1-copy of the policy would show that it is a goods carrying vehicle and the seating capacity is one and in addition to the basic liability for the tractor and trailor, additional premium of Rs.25/- is paid in respect of one employee. The deceased was admittedly not an employee of the owner of the vehicle. According to the claimants, the deceased was engaged as a coolie for loading and unloading purpose. Ex.B-1 shows that no additional premium is paid in covering the risk for any coolie. In a decision reported in United India Insurance Co.Ltd. Vs. Serjerao and others,[1] the Apex Court, following the decision in Oriental Insurance Company Ltd. Vs. Brij Mohan and Others[2], held that the Insurance Company has no liability regarding labourers traveling in trollies. In Vachala and others Vs. V.R.Kumar and another[3], this Court held as follows: “The next contention of the learned counsel for the appellants that carrying of passenger in the offending vehicle at best amounts to the driver committing a breach of the terms and conditions of the policy and, so the insurer has to pay the compensation to the appellants and recover the amount so paid from the owner, cannot be accepted because carrying of passengers in the offending vehicle is contrary to the provisions of the Act and the Rules made thereunder and since the policy issued by respondent No.2 does not even cover the risk of passenger in the offending vehicle. If the insurer covers the risk of some persons and lays down some conditions for its being made liable in respect of those persons and if the insured violates some of those conditions, then there may be some force in the contention of learned counsel for appellants. When the insurer did not undertake to cover the risk of passengers in the offending vehicle, question of its being made liable in respect of the risk of such passenger does not arise.” In the present case also, the offending vehicle is a goods vehicle, being the tractor and trailor, whose seating capacity is only one, which is meant for the driver and no premium is collected to cover the risk of any other person. I n Royal Sundaram Alliance Insurance Co.Ltd. Vs. Eshwar and others[4], it was held that as per Regulation 28 of the Rules of the Road Regulations, a driver is prohibited to carry or allow any person to be carried on tractor and the provisions of the Act do not enjoin any statutory liability on the owner to get his tractor insured for any passenger travelling on the tractor. I n New India Assurance Co.Ltd. Vs. Vedwati[5], the Apex Court held that carrying of passengers in a tractor is not contemplated by the Act. As the offending vehicle in the present case is a tractor and trailor and coverage of the risk in respect of any person other than in respect of any passenger is not contemplated by the Act in respect of such vehicle and the policy – Ex.B-1 covers the risk of only the employee and no other person and the seating capacity being only one, this policy rules out the possibility of any other person traveling in the vehicle in any capacity, no liability can be fastened on the appellant-insurer for payment of compensation. In a catena of decisions, the Apex Court held that the insurer cannot be held liable to pay compensation in respect of any gratuitous or unauthorized passenger traveling in a goods vehicle. Even otherwise, assuming for a moment that the deceased was a coolie, as claimed by the respondents, still the appellant-insurer cannot be made liable to pay the compensation, as the risk in respect of a coolie is not covered by the policy-Ex.B-1 and no additional premium is paid in that regard. Under the above circumstances, the finding of the Tribunal fastening joint and several liability on the appellant- insurer for payment of compensation is held unsustainable and the same is accordingly set aside. It is stated that in pursuance of the interim order dated 07.07.2006 passed by this Court, the appellant-insurer deposited half of the compensation amount and by virtue of the said order, the claimants were permitted to withdraw their respective proportionate shares in the same proportion and subject to the limits and the conditions, as to the withdrawal and deposits, imposed by the Tribunal. In the Order dated 30.07.2007, while dismissing M.A.C.M.A.M.P.No.3664 of 2007 filed by the claimants seeking permission for withdrawal of the balance amount, this Court observed that petitioner Nos.1 and 2 admittedly withdrew Rs.25,000/- each. Having regard to the fact that the claimants are poor villagers and they may not be in a position to repay the amount at this moment, it is considered just and proper to direct that the amount already withdrawn by the claimants, from out of the deposited amount, may not be recovered from them. The claimants are, however, at liberty to recover the entire balance of the compensation from the owner of the vehicle. The appellant-insurer is also held entitled for refund of the balance amount that is lying in deposit. The impugned Award is modified accordingly exonerating the appellant-insurer from the liability to pay compensation to respondent Nos.1 to 3, subject to the above direction. In the result, the appeal is allowed, subject to the directions as stated above. There shall be no order as to costs. ____​______________ G. V. SEETHAPATHY, J 26th November, 2009 AMD [1] 2007 AIR SCW 7280 [2] 2007 AIR SCW 3734 (2007(7) SCALE 753] [3] 2006 ACJ 2098 [4] 2009 ACJ 1828 [5] 2007 ACJ 1043 (SC)