IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1071 OF 2002 Between: The Oriental Insurance Co. Ltd. ..... Appellant And Alivelamma & 5 others …Respondents CIVIL MISCELLANEOUS APPEAL No.1112 OF 2002 Between: The Oriental Insurance Co. Ltd. ..... Appellant And Smt. Veeramma & 8 others …Respondents CIVIL MISCELLANEOUS APPEAL No.1121 OF 2002 Between: The Oriental Insurance Co. Ltd. ..... Appellant And Nagamma & 5 others …Respondents CIVIL MISCELLANEOUS APPEAL No.1122 OF 2002 Between: The Oriental Insurance Co. Ltd. ..... Appellant And Smt. Gangamma & 5 others …Respondents CIVIL MISCELLANEOUS APPEAL No.1123 OF 2002 Between: The Oriental Insurance Co. Ltd. ..... Appellant And Boya Anjamma & 2 others …Respondents CIVIL MISCELLANEOUS APPEAL No.1124 OF 2002 Between: The Oriental Insurance Co. Ltd. ..... Appellant And Smt. Venkatamma & 5 others …Respondents CIVIL MISCELLANEOUS APPEAL No.1125 OF 2002 Between: The Oriental Insurance Co. Ltd. ..... Appellant And Hanumanthappa & 5 others …Respondents CIVIL MISCELLANEOUS APPEAL No.1126 OF 2002 Between: The Oriental Insurance Co. Ltd. ..... Appellant And Gandu Ramanna & 5 others …Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL Nos.1071, 1112, 1121, 1122, 1123, 1124, 1125 & 1126 OF 2002 COMMON JUDGMENT: These eight appeals are directed against the common award, dated 31.10.2001, rendered by the Chairman, Motor Accidents Claims Tribunal-cum-Additional District Judge, Hindupur, in O.P.Nos.70, 71, 73, 74, 75, 76, 83 and 84 of 2000 on his file. 2. The factual background for all the cases arising out of the same accident is that the eight deceased involved in respective cases, were travelling by Tipper No.KA 06 9147, along with others, on 18.08.1999, going to Hindupur in connection with filing of the nomination for the election to the State Legislative Assembly by their leader. At about 12.30 p.m., the tipper driver, driving the vehicle rashly and negligently, was unable to control the vehicle while negotiating a curve. The vehicle turned turtle resulting in the death of these eight persons and injuries to other passengers. The injured were treated at Government Hospital, Hindupur, and Lepakshi Police registered Crime No.31 of 1999 against the tipper driver. The second respondent is the owner and the first respondent is the insurer of the tipper, while the third respondent is the offending driver. Hence, the dependents of the respective deceased filed the claim petitions for compensation against the three respondents. 3. In O.P.No.70 of 2000, a compensation of Rs.2,00,000/- was claimed for the death of Vodde Eerannagari Adeppa, aged 27 years and claimed to be earning Rs.5,000/- per month from agriculture. 4. The claimants in O.P.No.71 of 2000 are the dependents of Vodde Rama Kristappa claimed to be earning Rs.5,000/- per month at the age of 40 years by doing agriculture and they claimed a sum of Rs.3,00,000/-. 5. The claimants in O.P.Nos.73 to 76, 83 and 84 of 2000 also similarly claimed a compensation of Rs.3,00,000/-, Rs.1,50,000/-, Rs.2,00,000/-, Rs.2,00,000/-, Rs.2,00,000/- and Rs.3,00,000/- respectively. 6. The driver/the third respondent remained ex parte before the Tribunal. The owner and insurer resisted the claims on identical grounds denying the rash and negligent driving by the tipper driver, the ages and incomes of the deceased and the dependence of the claimants. They also claimed that the deceased were not expected to travel in the goods vehicle disentitling the claimants to any compensation and the rights under Section 170 of the Motor Vehicles Act, 1988, were also claimed. Hence, they desired that the claims be negatived, while the owner also contended that in any view, his vehicle was covered with valid insurance due to which he is not liable to pay any compensation. 7. The Tribunal framed identical issues in all the claim petitions about the responsibility for the accident, the dependence of the respective claimants over the respective deceased, the entitlement of the claimants to compensation and the respondents’ liability for the same. 8. During the enquiry, the Tribunal examined P.Ws.1 to 9 and R.Ws.1 to 4 and marked Exs.A-1 to A-24, B-1 and B-2 and X-1. P.Ws.1 to 8 were the claimants, P.W.9 was an eye witness and the owner and driver of the tipper examined themselves as R.Ws.2 and 3, while an officer of the insurer deposed as R.W.1 and the Superintendent from the Road Transport Authority, Tumkur, was examined as R.W.4. 9. The Tribunal, in the common impugned award, noted that there is no dispute on the respective claimants being the legal representatives of the respective deceased and also referred to the inquest reports wherein the claimants were referred to as the blood relations. The Tribunal accepted the evidence of the eye witness, P.W.9, about the manner of the accident and also considered that the incident spoke for itself probablising that the rash and negligent driving by the third respondent alone caused the accident. 10. The Tribunal found that the evidence of R.W.4 and Ex.X-1 proved that the driver had a valid and subsisting driving license and the Tribunal referred to NEW INDIA ASSURANCE CO. LTD. VS. SATPAL SINGH[1], which was under reconsideration by a larger Bench on a reference made in NEW INDIA ASSURANCE CO. LTD. VS. ASHA RANI[2]. Still as SATPAL SINGH’s case (supra 1) was holding the field, subject to the right of the insurer to seek any review or file any appeal, the Tribunal considered that the claimants cannot be deprived of their legitimate right to compensation. 11. Then the Tribunal proceeded to consider the quantum of compensation payable in each case with reference to the age, avocation, status and income of the respective deceased and the dependence of the respective claimants and awarded Rs.1,27,980/-, Rs.1,11,820/-, Rs.1,48,700/-, Rs.59,500/-, Rs.1,27,980/-, Rs.59,500/-, Rs.1,11,820/- and Rs.1,41,580/- respectively. The Tribunal awarded interest at 9% per annum from the dates of the petitions till the dates of realization and also proportionate costs on the compensation awarded and gave further directions about the apportionment and disbursement of the compensation. 12. The award is challenged by the insurer in all these appeals on identical grounds contending that the deceased being unauthorized passengers, travelling in a goods vehicle, cannot make the insurer liable to pay the compensation in violation of the terms and conditions of the insurance policy and in the light of SATPAL SINGH’s case (supra 1) being referred to a larger bench, the insurer could not have been made liable and could not have been referred to a review or appeal. Hence, the insurer desired the impugned award to be reversed. 13. In all these cases, Sri H. Ravi, the driver did not enter appearance and the appeals stood dismissed for default against him and were not restored. Hence, the consideration herein is confined only to the claimants and the owner of the vehicle vis-à-vis the claims of the appellant. 14. Smt. I. Maamu Vani, learned standing counsel for the appellant in all the cases and Sri N. Aswardha Narayana, learned counsel for the claimants in M.A.C.M.A.No.1124 of 2002 are heard and in all the other cases, the claimants did not enter appearance and the owner did not enter appearance in any appeal in spite of unsuccessful attempts to serve the notices of the appeals personally and the later substituted service by publication in a newspaper in circulation in his area. 15. The findings of the Tribunal about the responsibility of the driver of the tipper for the accident and the claimants in each case being the dependents and legal representatives of the respective deceased are not challenged by any party and have become final. The fact that the driver of the tipper held a valid and subsisting driving license at the relevant time is also not further disputed and the existence of a valid and subsisting policy of insurance with the appellant for the tipper owned by the second respondent in the claim petitions is also not disputed. The assessment of just and adequate compensation in each case by the Tribunal and its further directions about the interest, costs, apportionment and disbursement are also not disputed by any party subsequent to the common award. 16. The only question that remains for consideration, therefore, is the non-liability of the insurer for payment of compensation due to the deceased being unauthorized passengers travelling in a goods vehicle in violation of the terms and conditions of the insurance policy. 17. The material on record shows that the facts are not in dispute and the deceased were admittedly travelling in the tipper to go to Hindupur on the fateful day in connection with the filing of nomination in the election to the State Legislative Assembly by their leader on that day. None of the parties claimed the purpose of travel of the deceased in the tipper to be for any other purpose or due to any other reason or to be in any other capacity. The tipper being a goods vehicle and the deceased being unauthorized passengers are, thus, not in dispute and the carrying of the deceased on the tipper being in violation of the terms and conditions of the insurance policy is also not seriously in question. The findings of the Tribunal in this regard are also to the same effect, which findings were not challenged by the claimants or the owner or the driver in any manner, leaving them to attain finality. However, the Tribunal has made the insurer also jointly and severally liable to pay the determined compensation with interest and costs solely with reference to SATPAL SINGH’s case (supra 1) which was pending reconsideration on an order of reference in ASHA RANI’s case (supra 2). The Tribunal still left it open for the insurer to file a review or prefer an appeal in case SATPAL SINGH’s case (supra 1) is overruled. Even that liberty is also not questioned by the other parties so far. 18. Ultimately, in ASHA RANI’s case (supra 2), a three Judge Bench of the Apex Court, on an exhaustive consideration of the relevant provisions of the Motor Vehicles Act, 1988, and the precedential law, had concluded that SATPAL SINGH’s case (supra 1) was not correctly decided and an insurer will not be liable to pay compensation for any passenger travelling in a goods vehicle as the statute does not enjoin any statutory liability of the owner of the vehicle to get his vehicle insured for any passenger travelling in a goods vehicle. Thus, while the insurer has no statutory liability to compensate for the death or injury to a passenger travelling in a goods vehicle, if the payment of the premium and terms and conditions of the insurance policy do not cover any such liability, the Supreme Court reiterated the same principle in its subsequent decisions including NEW INDIA ASSURANCE CO. LTD. VS. VEDAWATI AND OTHERS[3], wherein the Apex Court reiterated the absence of liability for the insurer in this regard in the light of further decisions reported in ORIENTAL INSURANCE CO. LTD. VS. DEVIREDDY KONDA REDDY[4], NATIONAL INSRUANCE CO. LTD. VS. AJITH KUMAR[5], NATIONAL INSURANCE CO. LTD. VS. BALJIT KAUR[6] a n d NATIONAL INSURANCE CO. LTD. VS. BOMMITHI SUBBHAYAMMA[7]. I n NATIONAL INSURANCE CO. LTD. VS. RATTANI AND OTHERS[8] also, the same principle was reiterated and there is no need for replication of any more precedents for the said principles. If so, the liberty given to the appellant to have its liability reviewed on SATPAL SINGH’s case (supra 1) being overruled, can be rightly availed by the appellant. 19. In all these cases, at the time of admission of the appeals, interim directions were given granting interim stay subject to deposit of half of the decreetal amount to the credit of the respective matters with liberty to the claimants to withdraw the same without furnishing any security. The liberty so given to the claimants might have been utilized by them and insofar as those amounts are concerned, the principle of pay and recover straight away applies due to the fact situation staring at the Court. 20. However, insofar as the remaining half of the compensation is concerned, Smt. I. Maamu Vani, learned counsel for the appellant brought to notice that in NATIONAL INSURANCE CO. LTD. VS. PARVATHANENI[9], a two Judge Bench of the Apex Court was considering the directions given by the High Court to pay and recover from the owner where the insurer has no liability to pay the compensation. The Division Bench opined that if the insurance company proves that it has no liability to pay compensation to the claimants, it cannot be compelled to make payment and later on recover it from the owner. The Division Bench doubted the correctness of the decisions to the contrary and opined that such compulsion by an order even by the Apex Court cannot be within the exercise of its jurisdiction under Article 142 of the Constitution of India. The Division Bench, therefore, referred the matter to a larger Bench. Though the decision of a larger Bench is still awaited, the opinion expressed by the two Judge Bench that the insurer cannot be compelled to pay and later recover from the owner has great persuasive force in determining the question about the remaining half of the compensation in these cases and if the Apex Court cannot exercise such jurisdiction under Article 142 of the Constitution of India, such a jurisdiction could not have been available to this Court under any other provision or principle. Therefore, to that extent, the insurer should be absolved from the liability, while it is open to the claimants to recover the same from the owner as per the original awards. 21. In the result, all these Civil Miscellaneous Appeals are allowed without costs and the awards in the respective cases against the appellant are set aside. Insofar as half of the decreetal amount in each case deposited to the credit of the matter as per the interim orders of this Court, the respective claimants were given liberty to withdraw the same without furnishing any security and as they became entitled to so withdraw the amounts in deposit, the appellant is entitled to recover the same from Sri V. Shiva Kumar, S/o. Veeraiah, the owner of the offending tipper without the necessity of being referred to any separate suit or other legal proceeding in each case. The claimants in each case are entitled to recover the remaining half of the decree debt due till the date of recovery from the said Sri V. Shiva Kumar, S/o. V. Veeraiah, the owner of the offending tipper as per the impugned awards. _____________________ G. BHAVANI PRASAD, J Date: 10th December, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL Nos.1071, 1112, 1121, 1122, 1123, 1124, 1125 & 1126 OF 2002 10th December 2010. KL [1] AIR 2000 SC 235 [2] 2001 AIR SCW 3295 [3] 2007 ACJ 1043 [4] 2003 ACJ 468 (SC) [5] 2003 ACJ 1931 [6] 2004 ACJ 428 (SC) [7] 2005 ACJ 721 (SC) [8] 2009 ACJ 925 [9] (2009) 8 SCC 785