IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE P.SWAROOP REDDY CIVIL MISCELLANEOUS APPEAL NO : 446 of 2003 (Appeal under Section ____ against the order/decree in OP no. : 221 of 1997 dated 02/08/2002 on the file of the court of theLand Reforms Appellate Tribunal-cum-II Additional District Judge, R.R.Dist at L.B.Nagar) Between: United India Insurance Co. Ltd., Dov. Office-XI, on behalf of Br. Office, Malakpet, Hyderabad. ..... APPELLANT AND 1 Smt. P. Karuna W/o. Late P.V. Subba Rao R/o. Plot No. 401 Prasanthinagar, Vanasthalipuram, Hyderabad-70. 2 Kum. P. Sree Naga Deepthi D/o. Late P.V. Subba Rao R/o. Plot No. 401 Prasanthinagar, Vanasthalipuram, Hyderabad-70. 3 Master P. Abilash Sairam S/o. Late P.V. Subba Rao R/o. Plot No. 401 Prasanthinagar, Vanasthalipuram, Hyderabad-70. 4 Samala Bal Reddy S/o. S. Buchireddy R/o. H.No. 3-73, Koheda Village, Hayathnagar Mandal, R.R. Dt. 5 P. Ramgopal Rao S/o Bhushaiah R/o. H.No. 6-8, Opp D N R Bus Depot, Dilsukhnagar R.R. Dist. 6 Smt. P. Sarojini W/o. P. Ramgopal Rao R/o. H.No. 6-8, Opp D N R Bus Depot, Dilsukhnagar R.R. Dist. .....RESPONDENT(S) Counsel for the Appellant:MR.A.V.K.S.PRASAD Counsel for the Respondent No.: MR.SRINIVAS VELAGAPUDI The Court delivered the following JUDGEMENT: PSR, J. C.M.A.No. 446 of 2003 Judgment This appeal is filed against the order of the learned Chairman, Motor Accidents Claims Tribunal-cum-II Additional District Judge, Ranga Reddy District in O.P.No. 221 of 1997, granting compensation of Rs.9,84,350-00 for the death of P.V.Subba Rao, who was a bank employee, in the motor accident. The appellant is the insurance Company. For the sake of convenience the parties herein would be referred to as they are arrayed before the trial court. 2. The facts of the case are: The first petitioner is the wife; Petitionr Nos. two and three are the minor daughter and son and Respondent Nos. 3 and 4 are the parents of the deceased, who died in the motor accident. On 2.8.1995, the deceased was proceeding from Vanasthalupuram on his Scooter with one Muva Narendra Babu, his landlord, as pillion rider, to go to the residence of his father at Dilsukhnagar and when they reached near fruit market at Kothapet at about 1.00 AM, jeep bearing No. ABY-1948 driven in rash and negligent manner in high speed dashed against the scooter, dragged the scooter to a distance of 50’, as a result of which the deceased sustained injuries and died in the accident. The deceased was working as a clerk in Andhra Bank drawing monthly salary of Rs.9,600-00. 3. The second respondent, who is the owner of the vehicle contended that the jeep involved in the accident was not hired to Chandana Brothers for the purpose of advertisement; that the jeep was used for his personal use; that he is a close friend of the proprietor of Chandana Brothers; he is a regular customer of their cloth shop; the proprietor of Chandana Brothers requested him to carry the advertisement material to L.B.Nagar, for which he accepted and that the driver was transporting the said material. 4. The second respondent insurance company filed its counter contending that the petitioner has to prove that the driver of the jeep was having valid driving license at the time of the accident and that the accident took place on account of the rash and negligent driving of the driver of the jeep. It is further contended that the insurance company cannot be made liable to pay compensation unless it is proved that the said jeep was insured as taxi for the purpose of hire. As there is violation of terms of the policy, the insurance company cannot be made liable for payment of compensation. The accident might have occurred due to the negligence of the deceased himself. 5. On the basis of the above pleadings, the following issues are settled for trial: i. Whether P.B.Subba Rao, died in an accident occurred on 2.8.1996 at about1.00 at Kothapet Fruit Market due to rash and negligent driving of jeep bearing No. ABY-1948? ii. Whether the petitioners are entitled to any compensation? If so, to what amount? iii. To what relief? 6. On behalf of the petitioners, PWs 1 to 3 were examined and Ex A-1 to A-10 were marked; and on behalf of the respondents RWs 1 to 3 were examined and Ex B-1, copy of the policy was marked. Apart from the above Ex X-1, Ration card and Ex X-2 driving license were also marked. 7. On the basis of the above material on record, the trial court awarded compensation, as mentioned supra. 8. Learned counsel appearing for the appellant-insurance company contended that even as per the petition, the jeep that caused accident was hired by Chandana Brothers; as such the insurance company is not liable as per the terms of the insurance policy, as it was only an Act policy. Thus the vehicle was used for commercial purpose and as such the appellant is not liable for compensation. 9. As contended by the learned counsel for the appellant, in paragraph-3 of the petition, it is mentioned that the jeep was hired by Chandana Brothers for the purpose of advertising and it was decorated with advertising boards. He further contended that as the vehicle was used for commercial purpose and as the material on record also reveals that the vehicle was used for the purpose against the terms of the policy, the insurance company is not liable. 10. The contention of the learned counsel appearing for the petitioners is that the vehicle was not at all used for commercial purpose. In fact, it was a hit and run case, as per the FIR also. During the course of investigation on the basis of the material that was found at the scene of accident, where planks pertaining to advertisement boards was found, it was presumed that, the said jeep was the one used for advertisement by Chandana Brothers. But, in fact, it was a case where advertisement material was being transported in the jeep by a friend of Chandana Brothers, during the course of which the accident occurred. 11. The FIR (Ex A-2) shows that an unknown vehicle dashed the scooter causing death of the deceased. Ex A-3 copy of the charge sheet shows that from the examination of the scene, it is found that the pieces of decorative boards used for advertising were lying at the scene on the basis of which the crime vehicle was identified. The wood pieces of the board that were found at the scene of occurrence belong to Chandana Brothers cloth shop. Ex A-4, panchanama of scene of offence conducted on the date of accident, itself would show that on the road the pieces of advertisement board were found. 12. The evidence of RW-1, the owner of the vehicle shows that the said jeep was never given on hire to Chandana Brothers. In his cross examination it is revealed that advertisement boards of Chandana Brothers were kept in his jeep to be left at L.B.Nagar. He denied the suggestion that he live from the income he gets on hiring of jeep. He also denied the suggestion that he hired the jeep to Chandana Brothers. RW-2, the officer of the insurance company stated that in their enquiry, it is revealed that the vehicle was hired to Chandana Brothers. RW-3, the driver of the vehicle at the time of the accident stated that, at that time, the scooter came in opposite direction and dashed against him. His evidence shows that he took the relatives of the owner of the jeep to Chandana Brothers at Abids for marriage clothes and after they purchased the clothes, in the night 9.30PM, he left the relatives of RW-1 at their house at Masab Tank and thereafter, while he was returning to Koheda, RW-1 instructed him (RW-3) to bring the hoardings of Chandana Brothers from the shop and leave them at L.B.Nagar, in the said jeep. RW-1 was a regular customer of Chandana Brothers and had political affiliation with the owner of Chandana Brothers as such he (RW-1) instructed him to bring the hoardings of Chandana Brothers in the jeep while returning to Koheda and the hoardings were not being transported for hire. Thus, the material on record shows that the hoardings of Chandana Brothers were being transported in the jeep at the time of accident, on account of the friendship between RW-1 and owner of Chandana Brothers and there is no material to show that the jeep was actually hired. 13. No doubt, in paragraph-3 of the claim petition, it is mentioned that the jeep was hired by Chandana Brothers. Only because the material pertaining advertisement boards and hoardings of Chandana Brothers was found at the scene, the petitioners might have presumed that the jeep was hired by Chandana Brothers and in the circumstances and in view of the evidence of RWS 1 and 3, who spoke that the vehicle was not hired; it need not be treated that the jeep was on hire with Chandana Brothers. Further more, if the jeep is to be used for the purpose of fixing of advertisement material/hoardings, certain changes have to be made in the body of the jeep, to make it useful for fixation of the boards. But there is no material on record to show that any such things were done. Though in Ex A-6 there is reference about break of right side angular and right side advertisement plywood frame being broken, it is not mentioned that there was any conversion of the jeep to make it suitable for fixing of the advertisement hoardings. It may be that the advertisement plywood frames kept in the jeep for being transported were found broken. Though there is some possibility for accepting the contention of the appellant-insurance company, that the jeep was used for advertisement purpose by fixing advertisement hoardings to it, in view of the evidence of RWs 1 and 3 and as the finding of the court below is otherwise, I am not inclined to disturb the same in this appeal filed by the insurance company, as the Act under which the claim is made is a beneficial legislation for the welfare of the injured/ dependents of the deceased, in accidents. 14. For all the foregoing reasons, I find no merits in the appeal and it is accordingly dismissed. No costs. _______________________ P. SWAROOP REDDY, J. June 22, 2010. *BVS