THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.2686 OF 2002 DATED: 28-10-2009 Between: National Insurance Company Limited, Rep.by its Branch Manager, Gudivada, Krishna District. ..... PETITIONER And Gaddam Pushkanthamma & 3 others. .....RESPONDENTS ORDER: This appeal is directed against the order, dated 07-06-2002, in M.V.O.P.No.75 of 2000 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Vijayawada, wherein the claim of the respondents 1 and 2 was allowed in part awarding a sum of Rs.1,36,024/- with interest @ 9% p.a. from the date of the petition. 2. Heard learned counsel appearing for the appellant- insurance company and the learned counsel appearing for the respondents-claimants 1 and 2. None appeared for the respondents 3 & 4-driver and owner of the vehicle. Perused the record. 3. Respondents 1 and 2 herein filed the claim application seeking compensation of Rs.1,50,000/- on account of the death of the deceased-Gabriel, who died in a motor vehicle accident that occurred on 24-02-1999. 1st claimant is the wife and the 2nd claimant is the son of the deceased. According to them, the deceased was a carpenter and on that day he boarded the truck bearing No.AIC 3952 and trailor bearing No.AIC 3953 to go to Nidumolu for the purpose of bringing carpentry material and at Nidumolu centre, he asked the driver of the tractor to stop the vehicle and when he was getting down from the tractor the driver drove the same in a rash and negligent manner due to which he fell down and the left tyre of the tractor ran over him and the neighbours raised alarm and when the driver drove the tractor in reverse the tyres of the tractor again ran over the other leg and caused fracture. It is further stated that the deceased was shifted to Government hospital, Machilipatnam, where his statement was recorded and based on the same, case in Cr.No.17 of 1999 was registered under Section 338 IPC. Subsequently, the deceased died while undergoing treatment and on intimation, the Section of law was altered to 304-A IPC. 4. The driver of the tractor remained ex parte and the appellant-insurer filed a counter opposing the claim and denying the liability to pay the compensation, inter alia, on the ground that the deceased was unauthorized gratuitous passenger and therefore it is not liable to pay the compensation. 5. During enquiry, P.Ws.1 and 2 were examined and Exs.A.1 to A7 were marked. No oral evidence was adduced and Ex.B.1-copy of the policy was marked. 6. 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. It was further held that the claimants were entitled for a compensation of Rs.1,36,024/- with interest @ 9% p.a. from the date of the petition. Aggrieved of the same, the present appeal is filed by the insurer. 7. Learned counsel appearing for the appellant would mainly contend that the Tribunal has failed to note the fact that admittedly the deceased was an unauthorized gratuitous passenger travelling in a goods vehicle, and erred in fastening the joint and several liability on the appellant-insurer though the risk of the passenger is not covered by the policy. 8. Learned counsel appearing for the respondents- claimants, on the other hand, would vehemently contend that the deceased though travelling in the tractor met with the accident while he was getting down from the tractor and therefore, he cannot be treated as a passenger at the moment the accident occurred. 9. The accident occurred on 24-02-1999 at about 7.00 p.m. Immediately, the deceased was shifted to the Government hospital, Machilipatnam. The statement of the deceased was recorded at 8.30 a.m. on 25-02-1999 by the police. Based on the said statement, First Information Report in Cr.No.17 of 1999 was registered initially under Section 338 IPC. Subsequently, after the death of the deceased, while undergoing treatment, the Section of law was altered to Section 304-A IPC. In the said statement, which was recorded from the deceased shortly after the occurrence and which operates as a Dying Declaration since the deceased died, the deceased himself has stated that on the evening of 24-02-1999 at 7.00 p.m. he started from his village for Nidumolu on the tractor for the purpose of carpentry work and after reaching Nidumolu centre he asked the driver of the tractor to stop the vehicle and thinking that the driver stopped the tractor, the deceased was getting down and at that time, the driver took the tractor forward, whereupon the deceased fell down and the rear wheel of the tractor passed over his legs and when he raised cries the driver of the tractor reversed the vehicle and again it ran over his leg. 10. From the averments in the First Information Report itself, it is clear that the deceased has not engaged the tractor and he boarded the tractor at his village for the purpose of going to Nidumolu in connection with carpentry work and at the centre, he wanted to get down and thinking that the driver has stopped the vehicle he was in the process of getting down and at that time, the tractor moved forward resulting in his fall and the tractor wheel ran over his leg. It is therefore clear from the contents of the First Information Report-Ex.A1 itself that the deceased was unauthorized and gratuitous passenger on the tractor and the accident occurred while he remained to be such unauthorized and gratuitous passenger on the tractor. 11. The contention of the learned counsel appearing for the respondents-claimants that once the deceased fell down on to the road he ceased to be a passenger and he becomes a third party is untenable. It is not a case where the deceased was a pedestrian walking along the road and the tractor dashed him. By no stretch of imagination can the deceased be treated as a third party, in view of the contents of the First Information Report-Ex.A1, wherein the deceased himself stated that he was travelling in the tractor as a passenger. To get over the said version, which is the earliest and emanated from none else than the deceased himself, the claimant himself examined P.W.2 as eye witness to the occurrence. According to P.W.2, he was running a hotel near the scene of accident and that he witnessed the occurrence from his cash counter and the tractor ran over a male person. P.W.2 was thus examined to project as if the deceased was proceeding on the road and the tractor came and dashed against him. 12. The testimony of P.W.2 is contra to the version of the deceased himself as contended in Ex.A1. The observation of the Tribunal that no contra evidence was adduced by the appellant-insurer to show that the tractor and trailor was no way connected with the accident is unwarranted in view of the contents of Ex.A1. The Tribunal has completely ignored the version contained in Ex.A1 and the impugned award does not make any reference to the contents of Ex.A.1. As against the version of the deceased himself, which is virtually his Dying Declaration contained in Ex.A.1, oral testimony of P.W.1 cannot be given any weight or value. Under those circumstances, though it must be held that the accident occurred due to the rash and negligent driving of the tractor by its driver, the deceased however was an unauthorized and gratuitous passenger in the tractor when the accident occurred. Admittedly, the tractor is a goods vehicle and is not entitled to carry any passengers. 13. In NEW INDIA ASSURANCE CO. LTD., v. ASHA RANI[1]; UNITED INDIA INSURANCE CO. LTD., v. TILAK SINGH AND OTHERS[2]; and NATIONAL INSURANCE CO. LTD v. RATTANI & ORS[3], the apex Court held that the insurance company cannot be made liable pertaining to compensation in the case of death or injury in respect of an unauthorized and gratuitous passenger travelling in a goods vehicle and contrary to the terms and conditions of the policy. The policy-Ex.B1 does not admittedly cover the risk of any such passenger. 14. In view of the principles laid down in the above decisions and also in view of the fact that the deceased was unauthorized and gratuitous passenger over the tractor and trailor, which is a goods vehicle, and was travelling contrary to the terms and conditions of the policy, no liability can be fastened on the appellant- insurer. 15. The impugned order of the Tribunal is accordingly modified by exonerating the appellant-insurer from the liability to pay compensation. It is stated that in pursuance of the interim order, dated 24-09-2002, in C.M.P.No.18026 of 2002 the appellant-insurer has deposited half of the decretal amount with interest and costs and the same was also withdrawn by the claimants. If it is so, the said amount already withdrawn may not be recovered from the claimants having regard to the fact that they are poor agricultural coolies and helpless victims. The appellant- insurer is however at liberty to recover the said amount withdrawn by the claimants from the owner of the vehicle and the claimants are however at liberty to recover the remaining amount from the owner of the vehicle. 16. In the result, Appeal is allowed as stated above. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 28th October, 2009 Tsy [1] 2003 ACJ 1 (SC) [2] 2006 ACJ 1441 [3] I (2009) ACC 417 (SC)