IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SEVENTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA M.A.C.M.A.No.1393 of 2007 Between: United India Insurance Company Limited, Div. Office – 1, S.D. Road, Secunderabad rep. by its Sr. Div. Manager ..... APPELLANT AND Smt.Sabera Begum and others ..... RESPONDENTS JUDGMENT: The United India Insurance Company Limited – the second respondent in O.P.No.2497 of 2003 on the file of the V Additional Metropolitan Sessions Judge (Mahila Court) – cum – XIX Additional Chief Judge, City Criminal Courts, Hyderabad (hereinafter in short referred to as ‘the Court’ for the purpose of convenience) had preferred the present MACMA. 3. The Respondents – Claimants filed the said O.P. under Section 166 of the Motor Vehicles Act (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) claming compensation of Rs.2,00,000/- for the death of the deceased in an accident which occurred on 06-01-2002. The Court in the light of the respective pleadings of the parties having settled the issues, recorded the evidence of PWs.1 and 2 and RW-1 and marked Exs.A-1 to A-6 and Ex.B-1 as well and ultimately came to the conclusion that the O.P. to be partly allowed awarding compensation of Rs.1,25,000/- with interest at 7% per annum from the date of filing of petition till the date of realization with proportionate costs. 4. Aggrieved by the same, the present MACMA had been preferred. Sri A.V.K.S. Prasad, learned counsel representing the appellant would maintain that the Court below failed to see that the deceased who was going on the scooter as pillion rider at the time of accident was not covered under the policy of insurance under Ex.B-1 and the Court below without going through the oral and documentary evidence placed before it erroneously fix the liability on the insurance company as well at 50% per annum on the ground of contributory negligent. This approach adopted by the Court below cannot be sustained. The learned counsel also had taken this court through the evidence of RW-1 in particular and would maintain that in the light of the clear evidence of RW-1 since there was no cross-examination or even suggestion the same to be taken as proved that of pillion rider is not covered by the policy under Ex.B-1 when that being so, the appellant insurance company cannot be fastened with liability at all. The learned counsel placed reliance on several decisions. 5. Per contra Sri B. Parameshwara Rao representing Mrs.A. Varalakshmi, learned counsel for respondents – Claimants would maintain that these unfortunate Claimants had not received any amount whatsoever even as on to this day. The learned counsel also would maintain that the Act being welfare Legislation the provisions are to be liberally construed. The Court below appreciated the oral and documentary evidence available on record and came to the conclusion that the insurance company is liable to pay the amount of Rs.1,25,000/- with interest at 7% per annum from the date of petition till the date of deposit with proportionate costs. In the light of the evidence of PWs.1 and 2 and also Exs.A-1 to A-6 it cannot be said that the findings recorded by the Court below are erroneous and hence, the MACMA to be dismissed. 6. Heard the learned counsel on record, perused the oral and documentary evidence available on record and also the findings recorded by the Court below. 7. In the light of the submissions made by the learned counsel on record, the following points arise for consideration: 1. Whether the United India Insurance Company Limited – the appellant – the second respondent in O.P.No.2497 of 2003 aforesaid be fastened with any liability what so ever in the light of the policy of insurance and also in the light of the evidence of RW-1 ? 2. If so, to what relief the parties would be entitled to ? 8. POINT No.1:- For the purpose of convenience the parties hereinafter would be referred to as petitioners and respondents as shown in M.V.O.P.2497 of 2003 aforesaid. 9. The M.V.O.P. was filed by the Claimants under Section 166 of the Act claiming compensation of Rs.2,00,000/- for the death of the deceased in a motor accident which occurred on 6-1-2002. It is the case of the Claimants that the first petitioner is the wife and the petitioners 2 to 8 are the children of the deceased. On the date of accident, the deceased and his friend went to Yadagiri to attend the marriage function of their relatives and while they were returning to Hyderabad, on the scooter bearing No.AP-12-B-6175 driven by his friend, and when the scooter reached near Silthanpur Gate, a lorry came from the opposite direction, on which the scooter driver gave way to the lorry and lost control over the scooter, due to which the scooter slipped and fell down on the road and the deceased sustained bleeding injuries on his head and while shifting him to Government Hospital, Pargi, on the way he succumbed to the injuries. The deceased was earning Rs.5,000/- per month by working under a Civil Contractor. Because of his sudden death, the petitioners who are dependent on his income have lost the said income and also future support. 10. Respondent No.1 had not chosen to contest the matter. Respondent No.2 filed counter denying the averments made in O.P. Subsequent stand had been taken that there was no negligence on the part of the Driver of the scooter and the accident occurred due to the negligence of the Driver of the lorry. The validity of the driving licence of the driver of the lorry and the validity of the insurance coverage also has been denied. 11. On the strength of these pleadings the following issues were settled: 1. Whether the deceased Iqbal Ahmed, died in a motor accident that took place on 6-1-2002 due to rash and negligent driving of driver of scooter bearing No.AP 12B 6175 ? 2. Whether there has been valid coverage of insurance Policy ? 3. Whether there have been any violation of conditions of insurance Policy ? 4. Whether the petitioners are entitled for compensation, if so, to what amount and from whom 5. To what relief ? 12. Before the Court below the first Claimant Smt.Sabera Begum was examined as PW-1 and apart from the evidence of PW-1 the evidence of PW-2 was also available on record who supported the version of PW-1. Ex.A-1 is the certified copy of First Information Report, Ex.A-2 is the certified copy of charge sheet, Ex.A-3 is the certified copy of inquest, Ex.A-4 is the certified copy of postmortem report, Ex.A-5 is the certified copy of MVI report and Ex.A-6 is the Salary Certificate of deceased. As against this evidence on behalf of the insurance company RW-1 was examined and Ex.B-1 the insurance policy had been marked. 13. The evidence of PWs.1 and 2 had been appreciated and the Commissioner was appointed to cross-examine PW-2. But no report was filed by the Commissioner and the warrant was recalled. The Claimants had not taken any further steps to examine other witnesses in order to prove the negligence. Hence, it can be said that except the evidence of PW-1 there is no other evidence available on record. Be that as it may, the principal question which had been argued in elaboration by the learned counsel on record is relating to the question whether the insurance company can be fastened with any liability at all whatsoever inasmuch as the death is of a pillion rider in the light of the evidence of RW-1 and also the policy Ex.B-1. 14. RW-1 deposed that he has been working as Assistant Manager in R-2, they issued a policy in respect of scooter bearing No.AP-12-B-6171 valid from 30-01-2001 to 29-01-2002, but as per the conditions of the policy the pillion rider is not entitled for any compensation, no premium was paid covering the risk of the pillion rider and if it is a comprehensive policy the said risk would be covered by paying extra premium. Hence, R-2 is not liable. The cross-examination is shown as nil and the re-examination is also shown as nil. It is needless to say that this evidence of RW-1 is left unchallenged. The conditions of the policy under Ex.B-1 also appear to be not in serious controversy between the parties. The learned counsel representing the appellant had relied on the under noted decision and made elaborate submissions relating to this aspect. 15. Strong reliance was placed on United India Insurance Company Limited, Shimla v. Tilak Singh and others[1] wherein the Apex Court held that in case of the Act only policy the risk of gratuitous passenger carried in private vehicle is not covered. The Apex Court in fact had referred to under noted cases: “2003 AIR SCW 780; AIR 2003 SC 1446; 2002 AIR SCW 5259; AIR 2003 SC 607, 2001 AIR SCW 3910; AIR 2001 SC 3939; 1999 AIR SC 1077; AIR 1999 SC 1398; 1999 AIR SCW 4337; AIR 2000 SC 235; 1998 AIR SCW 1327; AIR 1998 SC 1433; 1998 AIR SCW 3378; AIR 1999 SC 56; 1996 AIR SCW 1661; AIR 1996 SC 1560; 1995 AIR SCW 4520; AIR 1996 SC 586, AIR 1986 AP 62 (FB) and AIR 1977 SC 1735”. 16. Reliance was also placed on Oriental Insurance Company Limited v. Sudhakaran K.V. and others[2] wherein it was held in paragraph Nos.16 to 18 as follows: “Indisputably, a decision has to be made between a contract of insurance in regard to a third party and the owner or the driver of the vehicle. This Court in a catena of decisions has categorically held that a gratuitous passenger in a goods carriage would not be covered by a contract of insurance entered into by and between the insurer and the owner of the vehicle in terms of Section 147 of the Act. A Division Bench of this Court in United India Insurance Company Limited v. Tilak Singh extended the said principle to all other categories of Vehicles also, stating as under: ‘In our view, although the observations made in Asha Rani Case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion-rider, as a insurance policy was a statutory policy, and hence, it did not cover the risk of death of or bodily injury to a gratuitous passenger’.” 17. Strong reliance was also placed on The General Manager, United Insurance Company v. M. Laxmi and others[3]. 18. It is no doubt true that thus Act is a welfare and beneficiary Legislation and normally the provisions of the Act to be liberally construed. But, however, when the terms and conditions of the insurance policy are clear and especially when the evidence of RW-1 and the terms and conditions of Ex.B-1 are not put into serious controversy at all, this court is of the considered opinion that the findings recorded by the Court below cannot be sustained and accordingly, the said findings are hereby set aside and it is needless to say that the insurance company is bound to succeed and the MACMA to be allowed. 19. POINT No.2:- In the result, the MACMA is hereby allowed. There shall be no order as to costs. 20. It is stated that the Insurance Company already had deposited 1/4th of the awarded amount. It is needless to say that the Insurance Company is at liberty to withdraw the same without furnishing any security. ___________________ P.S. NARAYANA, J April 27, 2010. Pn THE HON'BLE SRI JUSTICE P.S. NARAYANA M.A.C.M.A.No.1393 of 2007 April 27, 2010 [1] AIR 2006 Supreme Court 1576 (1) [2] (2008) 7 Supreme Court Cases 428 [3] 2008 (1) Decisions Today (SC) 649