IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD TUESDAY, THE THIRTEENTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.954, 953 & 3082 OF 2009 M.A.C.M.A.No.954 OF 2009 Between: The Oriental Insurance Company Ltd., Rep. by its Divisional Manager, Divisional Office, Gopalraopet, Gudivada …Appellant A n d Veeranki Siva Nageswaramma and others ..Respondents M.A.C.M.A.No.953 OF 2009 The Oriental Insurance Company Ltd., Rep. by its Divisional Manager, Divisional Office, Gopalraopet, Gudivada …Appellant A n d Kolusu Baby and another ..Respondents AND M.A.C.M.A.No.3082 OF 2009 The Oriental Insurance Company Ltd., Rep. by its Divisional Manager, Divisional Office, Gopalraopet, Gudivada …Appellant A n d Kunapareddy Bhoo Lakshmi and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.954, 953 & 3082 OF 2009 COMMON JUDGMENT: M.A.C.M.A.No.954 of 2009 is directed against the order dated 27.02.2008 in O.P.No.34 of 2007, on the file of the Chairman, Motor Accidents Claims Tribunal, (I- Additional District Judge), Krishna, at Machilipatnam, wherein the claim of respondents 1 to 3 herein was allowed-in-part awarding compensation of Rs.2,82,000/- with interest at 7.5% per annum. 2. M.A.C.M.A.No.953 of 2009 is directed against the order dated 27.02.2008 in O.P.No.33 of 2007, on the file of the Chairman, Motor Accidents Claims Tribunal, (I- Additional District Judge), Krishna, at Machilipatnam, wherein the claim of respondent No.1 herein was allowed- in-part awarding compensation of Rs.2,50,000/- with interest at 7.5% per annum. 3. M.A.C.M.A.No.3082 of 2009 is directed against the order dated 11.04.2008 in O.P.No.310 of 2006, on the file of the Chairman, Motor Accidents Claims Tribunal, (I- Additional District Judge), Krishna, at Machilipatnam, wherein the claim of respondents 1 and 2 herein was allowed-in-part awarding compensation of Rs.3 lakhs with interest at 7.5% per annum. 4. As the three appeals arise out of the same accident and involve common questions of fact and law, they are heard together and are being disposed of by this common judgment. 5. Heard both sides. Perused the record. 6. According to the claimants, on 12.03.2006, the deceased B.Anil Babu, who is the husband of the 1st claimant and father of claimants 2 and 3 in O.P.No.34 of 2007, was travelling in the lorry bearing No.AP 21 U 5110 for the purpose of loading senaga pottu (bengalgram chaff) in Guntur District along with other moota coolies and that on account of rash and negligent driving by its driver, the vehicle overturned near Abineniguntapalem, resulting in the death of the deceased Anil Babu and two others and injuries to several others. The 1st claimant in O.P.No.310 of 2006 is the wife and the 2nd claimant therein is the son of another deceased Prakash Rao. The claimant in O.P.No.33 of 2007 is wife of the 3rd deceased K.Ranga Rao. 7. The owner of the lorry remained ex parte in the three OPs. The appellant-insurer filed counters opposing the claim and denying their liability to pay the compensation. 8. After due enquiry, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry by its driver. The Tribunal further awarded a sum of Rs.2,82,000/- for the claimants in O.P.No.34 of 2007, Rs.3 lakhs for the claimants in O.P.No.310 of 2006 and Rs.2,50,000/ for the claimants in O.P.No.33 of 2007, all with interest at 7.5% per annum from the date of the petition. Aggrieved by the same, the insurer filed the present appeals. 9. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the lorry by its driver as also the quantum of compensation awarded by the Tribunal, are not seriously challenged. The main contention of the learned counsel for the appellant is that the deceased in all three cases were unauthorized and gratuitous passengers in the lorry and the risk is not covered by the policy and, therefore, the insurer cannot be fastened with any liability. 10. As seen from F.I.R-Ex.A-1, a case was registered against the driver of the lorry based on a complaint given by one of the inmates of the lorry. In Ex.A-1, it is stated that on that day at about 08.00 A.M., in connection with the moota coolie work, the complainant and the deceased and others started off on the instructions given by Veeranki Raghavulu, moota maistry and they reached Pamarru and boarded the lorry bearing No.AP 21 U 5110 and reached Guntur at 01.00 P.M., and had their lunch and again started at 01.30 P.M., and on account of the rash and negligent driving of the lorry by its driver, the vehicle dashed against the road side trees and overturned, resulting in death of three persons and injuries to several others. The inquest report- Ex.A-2 also shows that the deceased and others were travelling in the lorry as moota coolies for the purpose of loading the bengalgram chaff. Thus, as per Exs.A-1 and A-2, the deceased and others boarded the lorry at Pamarru and after crossing Guntur, the accident occurred. 11. P.W.1 also deposed that the deceased were all travelling in the lorry for coolie work. P.W.2 is stated to be an eye-witness to the accident who was also travelling in the lorry along with the deceased. He testified that himself and the deceased and others started at Pamarru to go to Parcharu for loading Sanagapottu. In the cross- examination, he stated that they were in all ten people in the lorry at the time of accident. R.W.1, the Assistant Manager of the insurance company, testified that the deceased were unauthorized passengers in the lorry and as per the policy-Ex.B-1, the risk in respect of such persons is not covered, as no extra premium is collected. The policy-Ex.B-1 shows that apart from basic premium to cover third party risk, an additional premium was paid towards third party property damage and towards personal accident for the owner and driver and Rs.25/- was collected towards legal liability to employees. No additional premium is paid to cover the risk of any labourer who is engaged for any work in connection with use of the vehicle. The deceased in the three cases cannot be termed as employees of the owner of the vehicle who are employed in connection with the use of the said vehicle. The evidence on record established that at the time of accident, the deceased were not engaged in the work of loading or unloading. Even according to the claimants, the deceased were proceeding to Parachuru on the instructions of the moota maistry in connection with some loading work at Parachuru. They started from Pamarru and even before they reached Parachuru, the place of work, the accident occurred midway. It cannot, therefore, be said that at the time of accident, the deceased were engaged in any loading or unloading work in the lorry. At that time, they were merely travelling in the lorry. Even otherwise, the policy-Ex.B-1 does not cover the risk of any labourers who are engaged in loading and unloading operations. The additional premium of Rs.25/- collected to cover the risk of employees engaged by the owner of the lorry in connection with the use of the lorry, cannot be interpreted as premium to cover the risk of labourers engaged by the moota maistry. 12. The learned counsel for the respondents/claimants seeks to rely upon a decision of this Court in NEW INDIA ASSURANCE CO. LTD. V. KISTAMMA AND OTHERS[1] wherein it was held that the insurance company would be liable when the deceased was travelling in the vehicle provided by the employee who have come from the place of work and the accident must be deemed to have occurred during the course of employment of the deceased. In the above case, the vehicle involved was tractor belonging to the owner, the insured, and the deceased was working as a coolie on the said tractor of the owner and after unloading the bricks at Kakalapad village and while returning, the accident occurred. It was, therefore, held that the accident occurred during the course of employment. In view of the enlarged scope of Section 51-C of the Employees State Insurance Act to the effect that the phrase ‘in the course of employment’ would include as travelling as a passenger by the employers’ vehicle to or from the place of work. In the above case, it was found that the deceased was engaged by the owner of the tractor as a coolie for loading and unloading purpose. The above decision is not applicable to the facts of the present case for the reason that the deceased herein were not engaged by Mathi Mastan, the owner of the vehicle, but were said to have been travelling in the lorry at the instance of moota maistry viz., Veeranki Raghavulu to reach Parachuru for the purpose of some loading work at that place. The person whose work the deceased was supposed to undertake at Parachuru is not known and his identity is not disclosed. The deceased was, therefore, admittedly not engaged by the owner of the lorry Mathi Mastan and, therefore, he was not an employee of the said owner. 13. The deceased in O.P.No.310 of 2006 is stated to be not a moota coolie, but was a driver. Admittedly, he was not driver of the lorry involved in the accident, but was a driver engaged by the same owner Mastan for another lorry. According to P.W.1, who is wife, the deceased was coming in crime vehicle on that day for the purpose of joining the duty on another lorry, of the same owner. In the cross-examination, she has admitted that she has not filed the driving licence of her husband to show that he was a driver. In F.I.R-Ex.A-1, she stated that the deceased Prakash Rao was driver of another lorry. Thus, insofar as the present crime vehicle is concerned, the deceased was only unauthorized passenger. The policy- Ex.B1 does not cover the risk of any labourer or unauthorized passenger as no additional premium is collected. None of the deceased in the three cases is an employee of the owner of the vehicle engaged by him for the purpose of loading and unloading at the time of the accident. 14. In a catena of decisions, the Apex Court held that the insurer cannot be made liable to pay compensation for the death or injury of unauthorized or gratuitous passenger in a goods vehicle. 15. In ‘NATIONAL INSURANCE COMPANY LTD., V. RATTANI[2]’, the A p e x Court held that the insurance company cannot be fastened with liability for the death or injury caused to the unauthorized and gratuitous passenger travelling in the goods vehicle. 16. In ‘NEW INDIA ASSURANCE CO. LTD. V. NEERADI KASPA SATTAVVA[3]’, this court, while following the decision of the Apex Court in ‘UNITED INDIA INSURANCE CO. LTD. V. SERJERAO[4]', held that the insurance company cannot be fastened with liability in respect of the risk for the labourers travelling in the trolley attached to the tractor as such travel itself is not permissible under Rule 28 of the Central Motor Vehicle Rules, which states that the driver when driving the tractor shall not carry or allow any person to be carried on tractor. 17. In a decision in “NEW INDIA ASSURANCE CO.LTD., V. ASHA RANI”[5], the Apex Court held as follows: “….On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and making it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury. It was further held: “The applicability of decision of this Court in Mallawwa (Smt.) and Ors. v. Oriental Insurance Company Ltd. and Ors., ((1999) 1 SCC 403) in this case must be considered keeping that aspect in view. Section 2(35) of 1988 Act does not include passengers in goods carriage whereas Section 2(25) of 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of the "goods vehicle" in 1939 Act and "goods carriage" in 1988 Act is significant. By reason of the change in the definitions of the terminology, the Legislature intended that a goods vehicle could not carry any passenger, as the words "in addition to passengers" occurring in the definition of goods vehicle in 1939 Act were omitted. Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use "solely for the carriage of goods". Carrying of passengers in a 'goods carriage', thus, is not contemplated under 1988 Act”. 18. In a decision in “NATIONAL INSURANCE CO.LTD. VS. BOMMITHI SUBBAYAMMA’[6], the A p e x Court held as follows: “Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people” 19. In view of the principles laid down in the above decisions and as the deceased were found to be travelling in the crime vehicle i.e., lorry as gratuitous and unauthorised passengers, whose risk is not covered by the policy by payment of additional premium, it is held that no liability can be fastened on the appellant/insurer. The impugned awards fastening joint liability on the appellant/insurer is, therefore, held unsustainable and is set aside to that extent. However, as the claimants are stated to be poor and illiterate, it is held that the amounts already withdrawn by them in pursuance of the interim orders dated 02.03.2010 in MACMA.MP.No.1672 of 2009 in M.A.C.M.A.No.954 of 2009, 12.03.2010 in MACMA.MP.No.1678 of 2009 in M.A.C.M.A.No.953 of 2009 and 19.08.2009 in MACMA.MP.No.4296 of 2009 in M.A.C.M.A.No.3082 of 2009 may not be recovered. It is open to the appellant/insurer to recover the said amount from the owner of the vehicle. The claimants are entitled to recover the balance amount due under the award from the owner of the vehicle. The impugned awards are modified accordingly. 20. M.A.C.M.As are allowed to the extent stated above. There shall be no order as to costs. ___________________ G.V.SEETHAPATHY, J 13th December 2011 Lrkm. [1] 2001 ACJ 516 [2] 2009 ACJ 925 [3] 2009(3) ALD 289 [4] 2008 ACJ 254 [5] 2003 ACJ 1 (SC) [6] 2005(2) ACJ 721 (SC)