IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.NO.1189 of 2005. Date:28.10.2009. Between:- The Regional Manager, United India Insurance Company Limited, Rep.by Branch Manager, Sangareddy, Medak District. ..Appellant And K.Laxman Rao and another. .. Respondents JUDGMENT:- This appeal is directed against the order, dated 30.09.2004, passed in O.P.No.119 of 2000 on the file of the Chairman, Motor Accidents Claims Tribunal – cum – Principal District Judge, Medak at Sangareddy wherein the claim of respondent No.1 herein was allowed in part awarding compensation of Rs.65,000/- with interest at 9% p.a. from the date of filing of the petition. 2. Heard the learned counsel for the appellant-insurer and respondent No.1-claimant. None appeared for respondent No.2. 3. Perused the records. 4. Respondent No.1 herein filed a claim petition seeking compensation of Rs.1,00,000/- on account of injuries sustained by him in a motor vehicle accident that occurred on 13.06.1996. According to him, on that day, he was traveling in a lorry bearing No.KA-39-838 from Patancheru to Sadasivpet with a bag of rice and when it reached the outskirts of Kandi village, the driver of the lorry, in an attempt to overtake another lorry, drove in a rash and negligent manner and dashed against a tree on the road side, as a result of which, he sustained multiple injuries including dislocation of right hip, fracture of right toe etc. He was shifted to N.I.M.S, Hyderabad where he underwent an operation. Police registered a case in Crime No.69 of 1996 against the driver of the lorry. According to him, he was working as a Security Guard in Allwyn and earning Rs.4,500/- per month and because of the injuries sustained by him, he is unable to perform his duties. 5. The owner of the vehicle remained exparte. 6. The appellant-insurer filed a counter opposing the claim and denying their liability inter alia on the ground that the claimant was an unauthorized passenger traveling in the lorry, which is a goods vehicle and therefore, the appellant is not liable to pay any compensation. 7. During enquiry, P.Ws.1 and 2 were examined and Exs.A-1 to A-8 were marked on behalf of the claimant. R.W.1 was examined. Ex.B-1-copy of the policy was marked on behalf of the appellant. 8. 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 lorry driven by its driver and the Tribunal further held that the claimant was traveling in the lorry as owner of the goods namely rice bag on payment of charges and therefore, there was no violation of the terms and conditions of the policy. The Tribunal further held that the claimant is entitled for a total compensation of Rs.65,000/- with interest at 9% per annum. Aggrieved by the said Order, the insurer filed the present appeal. 9. The main contention of the learned counsel for the appellant is that the claimant was admittedly traveling in the lorry as a passenger and the Tribunal erred in passing several and joint liability on the appellant though the policy does not cover the risk of such unauthorized passengers. The learned counsel for respondent No.1-claimant, on the other hand, submit that the claimant was accompanying goods in the lorry i.e., rice bag. 10. It is not seriously disputed that the accident occurred due to the rash and negligent driving of the lorry by its driver and the said vehicle is insured with the appellant under Ex.B-1-Policy. Respondent No.1 claims to be traveling in the lorry as owner of the goods. According to him, he was carrying one bag of rice in the said lorry. In the certified copy of First Information Report – Ex.A-1, which was registered on the basis of the complaint given by the complainant himself, it is stated that on that day, the claimant and another by name Sangaiah were together waiting at Patancheru Bus Stop to go to Sadasivapet after attending their duty at Allwyn and in the meanwhile, a lorry bearing No.KA-39-838 came from Hyderabad side and the claimant and Sangaiah both have boarded the lorry and sat in the cabin and the lorry was vacant and that subsequently, after crossing Kandi, the accident occurred. As per the contents of Ex.A-1, the claimant and Sangaiah, who are workers at Allywyn, after getting down from their duty on that day, were proceeding to Sadasivpet from Patancheru in the said lorry by sitting in the cabin of the lorry. It is nowhere stated in Ex.A-1 that the claimant was carrying a bag of rice along with him in the lorry. On the other hand, it is specifically stated that the lorry is empty. Even in the certified copy of charge sheet-Ex.A-2, which was filed against the driver of the lorry after due investigation, there is no reference to the existence of any rice bag in the lorry being carried in the lorry by the claimant. It is obvious that the said rice bag was introduced for the first time by the claimant by filing claim application. In the cross examination, P.W.1 has categorically admitted that he was traveling in the lorry as a passenger. The plea of the claimant that he was carrying rice bag in the lorry and was accompanying the same as owner cannot be believed at all. It is not the case of the claimant that he engaged the lorry for transport of any goods and he was accompanying the load as owner thereof. As seen from the evidence available on record, he was only a passenger, who got into empty lorry at Patancheru and wanted to get down at Sadasivpet and in the meanwhile, the accident occurred. The finding of the Tribunal that the claimant was traveling as owner of the goods is clearly unsustainable. The claimant is a gratuitous passenger and unauthorisedly traveling in the lorry. In the Judgments of New India Assurance Co.Ltd. Vs. Asha Rani[1], National Insurance Co.Ltd. Vs. Bommithi Subbhayamma and others[2] and National Insurance Co.Ltd. Vs. Rattani and Others[3], the Apex Court held that the insurer cannot be liable for payment of compensation in case of death or injury of a person, who is unauthorized and gratuitous passenger in the vehicle and whose risk is not covered by the terms and conditions of the policy. 11. In the light of the principles laid down in the above decisions and in view of the fact that the claimant was only unauthorized gratuitous passenger in the goods vehicle, whose risk is not covered by the terms of the policy-Ex.B-1, it is held that the appellant is not liable to pay any compensation. The impugned order passed by the Tribunal is, accordingly, modified to the extent stated above, exonerating the appellant from his liability to pay the compensation. As per the interim order dated 23.06.2005, the appellant was directed to deposit half of the compensation awarded together with interest and costs. Subsequently, by order dated 27.01.2006, the interim stay was made absolute. If the amount deposited is already withdrawn by the claimant, the same may not be recovered from him. The appellant is, however, at liberty to recover the said amount, if any withdrawn by the claimant, from the owner of the vehicle. The claimant is, however, entitled to recover the balance award amount from the owner of the vehicle. 12. In the result, M.A.C.M.A. is allowed, as stated above. There shall be no order as to costs. _________________ G.V.SEETHAPATHY, J 28th October, 2009 AMD [1] 2003 ACJ 1 (SC) [2] 2005 ACJ 721 [3] I (2009) ACC 417 (SC)