IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. Nos.3330 and 3527 of 2009 and M.A.C.M.A. (SR) Nos.4864, 4874, 4881, 4965 and 4972 of 2006 and C.R.P. Nos.5198 and 5199 of 2007 M.A.C.M.A. No.3330 of 2009: Between: The New India Assurance Company Ltd., rep. by its Branch Manager, Kurnool .. Appellant AND Naini Chandra Shekar and another .. Respondents M.A.C.M.A. No.3527 of 2009: Between: The New India Assurance Company Ltd., rep. by its Branch Manager, Kurnool .. Appellant AND Musti Kistamma and another .. Respondents M.A.C.M.A. (SR) No.4864 of 2006: Between: The New India Assurance Company Ltd., rep. by its Branch Manager, Kurnool .. Appellant AND Naini Rajendram and another .. Respondents M.A.C.M.A. (SR) No.4874 of 2006: Between: The New India Assurance Company Ltd., rep. by its Branch Manager, Kurnool .. Appellant AND Naini Neelamma and another .. Respondents M.A.C.M.A. (SR) No.4881 of 2006: Between: The New India Assurance Company Ltd., rep. by its Branch Manager, Kurnool .. Appellant AND Naini Kurumurthy and another .. Respondents M.A.C.M.A. (SR) No.4965 of 2006: Between: The New India Assurance Company Ltd., rep. by its Branch Manager, Kurnool .. Appellant AND Naini Sujatha and another .. Respondents M.A.C.M.A. (SR) No.4972 of 2006: Between: The New India Assurance Company Ltd., rep. by its Branch Manager, Kurnool .. Appellant AND Naini Jayamma and another .. Respondents C.R.P. No.5198 of 2007: Between: The New India Assurance Company Ltd., Kurnool .. Petitioner AND Musti Anjaneyulu and another .. Respondents C.R.P. No.5199 of 2007: Between: The New India Assurance Company Ltd., Kurnool .. Petitioner AND Naini Rameshwaramma and another .. Respondents COMMON JUDGMENT: This batch of seven appeals and two revisions arises out of the common award passed by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Mahabubnagar on 22-07- 2005 in O.P. Nos.497 and 499 to 506 of 2000. It is only in M.A.C.M.A. Nos.3330 and 3527 of 2009 and in C.R.P. Nos.5198 and 5199 of 2007 that the respective claimants were given notice, while the remaining five appeals were earlier not taken on file due to the petitions for condonation of delay in filing them being pending respectively, which are ordered only today. In the light of the conclusions being arrived at on merits applicable in common to all the nine cases, no notices are being ordered to the respondents in these five cases. The factual background for these nine cases is that these nine claimants were travelling in jeep No.AP 22T 8355 on 26-09- 1999 at about 8 A.M., when at Kollapur cross roads, the jeep turned turtle due to the rash and negligent driving by its driver and it fell into a ditch causing injuries to all the inmates of the jeep. The claimant in O.P. No.497 of 2000 claimed to have sustained grievous injuries, for which she was treated in Government hospital, Mahabubnagar spending more than Rs.1,000/- towards medicines. She claimed to be working as coolie earning Rs.50/- per day and claimed a compensation of Rs.20,000/-. The claimant in O.P. No.499 of 2000 also sustained grievous injuries, for which she took treatment in Government hospital, Mahabubnagar and she claimed to be working as coolie earning Rs.100/- per day and to have spent more than Rs.5,000/- for medicines. Hence, she claimed a compensation of Rs.50,000/- . The claimant in O.P. No.500 of 2000 also made a similar claim as the claimant in O.P. No.499 of 2000. The claimant in O.P. No.501 of 2000 claimed to be working as a coolie earning Rs.150/- per day and to have sustained grievous injuries, for which he took treatment in Government hospital, Mahabubnagar spending more than Rs.5,000/- towards medicines. He claimed a compensation of Rs.20,000/-. The claimant in O.P., No.502 of 2000 also sustained grievous injuries, for which she took treatment in Government hospital, Mahabubnagar and she claimed to be working as coolie earning Rs.100/- per day and to have spent more than Rs.5,000/- towards medicines. She claimed a compensation of Rs.50,000/-. The claimant in O.P. No.503 of 2000 also was treated at Government hospital, Mahabubnagar for his grievous injuries sustained and he claimed to be working as a driver of diesel auto earning Rs.300/- per day and to have spent Rs.15,000/- towards medicines. He claimed a compensation of Rs.75,000/-. The claimant in O.P. No.504 of 2000 was also treated at Government hospital, Mahabubnagar for the grievous injuries sustained and he claimed to be a brick manufacturer earning Rs.10,000/- per month and to have spent more than Rs.10,000/- towards medicines. He claimed a compensation of Rs.50,000/-. The claimant in O.P. No.505 of 2000 claimed to be working as coolie earning Rs.50/- per day and to have spent more than Rs.5,000/- towards medication, while being treated at Government hospital, Mahabubnagar for the grievous injuries sustained in the accident. She claimed a compensation of Rs.50,000/-. The claimant in O.P. No.506 of 2000 also was treated at Government hospital, Mahabubnagar for the grievous injuries and he claimed to have spent more than Rs.10,000/- towards medicines and to be a brick manufacturer earning Rs.10,000/- per month. He claimed a compensation of Rs.75,000/-. All the claimants claimed that the jeep driver was prosecuted in a criminal case for his rash and negligent driving. The owner of the jeep remained ex parte before the Tribunal in all the cases. The insurer denied the averments of the claimants in all the petitions and contended that the accident did not occur due to the negligence of the jeep driver. The insurer also questioned the occupation, income, injuries and quantum of compensation claimed by each of the claimants and further contended that the claimants were travelling as passengers in the taxi, the risk of whom was not covered by the insurance policy and the insurer, therefore, desired all the claims to be dismissed. The Tribunal framed identical issues in all the claim petitions about the claimants being injured in the motor accident due to the negligence of the driver of the jeep and the entitlement of the respective claimants to compensation. The Tribunal conducted a joint trial into all the claims and examined the nine claimants as P.Ws.1 to 9 and marked Ex.A.1 first information report, Ex.A.2 charge-sheet, Exs.A.3 to A.11 respective wound certificates of P.Ws.1 to 9 and Ex.B.1 insurance policy during the enquiry, apart from examining R.W.1 on behalf of the insurer. The Tribunal rendered the common award firstly noting that the accident occurred without the intervention of any other vehicle or object or person and the Tribunal noted that R.W.1 made no reference to the manner of the accident, while P.Ws.1 to 9 reiterated that the rash and negligent driving of the jeep resulted in the jeep turning turtle and falling into a ditch. The Tribunal concluded in obvious reference to Ex.A.1 first information report and Ex.A.2 charge-sheet that the accident occurred due to the negligence of the jeep driver. The Tribunal noted that Ex.B.1 insurance policy is an Act policy mentioning the seating capacity of the vehicle to be 6 and the vehicle to be meant for private and not public use. However, the Tribunal observed that the very registration number of the vehicle shows that it was being used as a public transport vehicle and the insurer did not take any steps against the owner for conversion of the vehicle from private transport violating the terms of the insurance policy. Relying on United India Insurance Company v. G. Shankar and others[1], the Tribunal concluded that the violation of the terms and conditions of the insurance policy in this regard is a matter between the insurer and the insured, which will not affect the rights of the third parties. Hence, it concluded that the insurer is liable for the claim for compensation. The Tribunal then adjudicated the quantum of compensation to be awarded in each case on the evidence about the injuries, their treatment and their consequences. In assessing the compensation, the Tribunal also deducted 10% from out of the compensation assessed stating the same to be towards the contributory negligence of the claimants in travelling in excess of seating capacity of the vehicle at 6. The Tribunal consequently arrived at a compensation of Rs.8,000/-, Rs.17,000/-, Rs.13,000/-, Rs.8,000/-, Rs.17,000/-, Rs.18,000/-, Rs.20,000/-, Rs.20,000/- and Rs.20,000/- respectively to the claimants. The Tribunal awarded interest at 7.5 per cent per annum on the respective sums from the dates of the petitions till the dates of realization and proportionate costs. The Tribunal gave no directions regarding any postponement of disbursement of the compensation so awarded. The insurer challenged all the nine awards on identical grounds claiming that the insurance policy was an Act policy covering third party risk only, for which premium was paid and the owner need not be indemnified for the loss sustained to the occupants of the vehicle. The seating capacity of the vehicle was 6, while the jeep carried 9 passengers, which is also in violation of the policy conditions, and the damages awarded for the injuries are more than the amounts specified in the Second Schedule to the Motor Vehicles Act. The finding that 9 persons travelling in the jeep contributed to the accident should have resulted in exoneration of the insurer, more so in the absence of examination of the medical expert to prove the wound certificates. Hence, the insurer desired the impugned awards to be reversed. Heard Smt. I. Maamu Vani, learned standing counsel for the insurer and the owner of the vehicle or the claimants did not enter appearance in any of the appeals or revisions. The points arising for determination on the grounds raised by the insurer are: (1) Whether the insurer is not liable due to the terms and conditions of the Act policy or the violation of them ? (2) Whether the claimants are not entitled to the different sums of compensation arrived at and granted by the Tribunal ? (3) To what relief ? Point No.1: I n United India Insurance Company v. G. Shankar and others (1 supra) relied on by the Tribunal, the learned Judge was dealing with the question of liability of the insurance company under similar circumstances. There also, the jeep in question was being plied as a taxi every day carrying passengers between two towns, though it was insured as a private vehicle and not as a taxi. On that finding of fact, the learned Judge referred to the precedents from the Apex Court and this Court in New India Assurance Company v. Kamla[2] and United India Insurance Company Limited v. Lingampally Mondi[3], wherein it was held that even though there is some breach or violation of the policy conditions, the insurance company is still liable to pay the compensation to third parties statutorily and the insurance company can recover from the owner of the insured vehicle the amount paid to the third parties. Therefore, under identical circumstances, the learned Judge has taken a view that notwithstanding the insurance of the vehicle as a private vehicle, if it was being used as a taxi carrying passengers every day, the third parties cannot be put to disadvantage on the ground of any violation of the terms and conditions of the insurance policy. The decision is not shown to be not holding the field as of now and if so, the liability of the insurer cannot be disowned. The Tribunal also noted as a finding of fact that the registration number of the vehicle itself shows that it was being used as a public transport vehicle. The policy of insurance Ex.B.1 was issued for the vehicle with the same registration number and therefore, the insurer clearly acquiesced in the vehicle being run as a public transport vehicle though its insurance was as if it were a private transport vehicle. Under the circumstances, the conclusions of the Tribunal in this regard about the liability of the insurer cannot be interfered with. Point No.2: Coming to the quantum of compensation granted to each of the claimants, the involvement of the jeep in the accident and P.Ws.1 to 9 being the passengers in the vehicle at that time receiving injuries due to the accident, are corroborated by the earliest version in Ex.A.1 first information report. The same has been confirmed by the statutory investigating agency after investigation as seen from Ex.A.2 charge-sheet. The fact that P.Ws.1 to 9 were victims in the accident involving the offending vehicle and were injured, is, thus, evident from Exs.A.1 and A.2, which are not contradicted by any contrary evidence or even by R.W.1. P.Ws.1 to 9 stated on oath about the basis for their claims, the injures they suffered, the treatment they received and the expenditure they incurred. In the absence of any contrary evidence, the Tribunal cannot be considered to have gone wrong in assessing the compensation in the manner in which it did and as the claims were made under Section 166 of the Motor Vehicles Act, the limitations of Second Schedule to the Motor Vehicles Act, 1988 cannot be imported into the considerations that governed a fault liability assessment. The fact that the capacity of the jeep was only 6, but 9 passengers were being carried in the vehicle on that day, can also have no impact on the right of the different claimants to claim compensation, firstly for the reasons stated in United India Insurance Company v. G. Shankar and others (1 supra) and secondly for the reason that the appeals against the owner stood dismissed for default in some of the cases and there can be no adjudication of the non-liability of the insurer to indemnify the owner in respect of all the 9 passengers, in the absence of the owner. While no expression of opinion is being made on any rights of the insurer against the owner under such circumstances, no prejudicial orders against the claimants can be passed in these appeals and revisions under the above circumstances. Therefore, all the appeals and revisions have to fail and they are accordingly dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 23-09-2010 Svv [1] 2003(2) ALT 596 [2] AIR 2001 SCW 1340 [3] 2002 (2) An.W.R. 433 (AP)