IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.2542 OF 2002. Date:13.11.2009. Between:- The Oriental Insurance Company Ltd., rep.by its Divisional Manager, Vijayawada. ..Appellant/R-2 And Dudekula Kasamma and others .. Respondents/Petitioners and R-1. JUDGMENT:- This appeal is directed against the order dated 13.06.2002 passed in M.V.O.P.No.671 of 1998 on the file of the Motor Vehicles Accidents Claims Tribunal – cum- District Judge, Guntur wherein the claim of respondent Nos.1 and 2 herein was allowed by awarding compensation of Rs.1,00,000/- along with interest at 9% p.a. from the date of the petition. Heard the learned counsel for the appellant. None appears for the respondents. Perused the records. Respondent Nos.1 and 2 herein filed the claim application seeking compensation of Rs.1,00,000/- on account of the death of the deceased Dedekula Moulali, who died in a motor vehicle accident that occurred on 14.10.1993. According to the claimants, the deceased was doing business in chillies and he boarded the D.C.M.Toyoto Lorry bearing No.AP.9T-7802 at Khammam along with two others to go to Giddaluru. When the lorry reached Somepalli village on Guntur Markapuram road, on account of rash and negligent driving by its driver, the lorry dashed against a neem tree on the road margin as a result of which, the deceased Moulali sustained multiple injuries and he was taken to Government Hospital, Markapuram and later, shifted to Government General Hospital, Guntur where he died two days later while undergoing treatment. The claimants further plead that the deceased was aged 30 years, was hale and healthy and was earning Rs.2,000/- per month from the chilli business. The owner and insurer of the vehicle filed counter opposing the claim and denying their liability to pay the compensation. The appellant-insurer further contended that the deceased was gratuitous passenger in a goods vehicle and therefore, his risk is not covered by the terms of the policy and as such, the appellant is not liable to pay the compensation. During the enquiry, P.Ws.1 and 2 were examined and Exs.A-1 to A-7 were marked on behalf of the claimants. No oral evidence was adduced by the appellant/insurer. Ex.B-1-copy of the Insurance policy was marked. 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 by its driver. The Tribunal further held that the claimants are entitled for a total compensation of Rs.1,00,000/- with interest at 9% p.a. fastening joint and several liability on the appellant-insurer on the ground that the deceased was traveling in the lorry as owner accompanying the goods and therefore, he was not a gratuitous passenger. Aggrieved by the same, the present appeal is filed by the insurer. Even as per the averments in the claim application, the deceased along with two others boarded D.C.M. Toyoto lorry in Khammam district along with chilly bags to go to Giddaluru in Prakasam district. It is not the plea of the claimants in their application that the deceased engaged the lorry for transport of his goods i.e., chilly bags and that he was accompanying the goods in the lorry as owner thereof. The application is also silent as to the number of the bags the deceased was carrying. The F.I.R.–Ex.A- 1, which was registered on the basis of the complaint given by one Dudekula Badaraiah, who was traveling along with the deceased, stated that himself along with deceased and others boarded the lorry to go to Giddaluru. Even F.I.R. does not disclose that the deceased was transporting any chilly bags. The inquest report–Ex.A-4 also does not show that the deceased was transporting any chilly bags. Nothing is placed before the Court to show that during the course of investigation, the police have seized chilly bags from the scene of accident under any panchanama. If really the deceased was transporting chilly bags, the same would certainly find a mention in the criminal case record and the police ought to have seized them under panchanama or atleast noted the existence of the chilly bags at the scene of accident in the panchanama but no such panchanama is produced before the Court to show the existence of the chilly bags in the lorry. In the absence of any such evidence, the claim of respondent Nos.1 and 2 herein that the deceased was transporting the chilly bags in the lorry and in fact was accompanying them at the time of accident as owner thereof, remains unsubstantiated. When that is so, the deceased would be only an unauthorized gratuitous passenger traveling in a goods vehicle. Even otherwise assuming for a moment that the deceased was transporting some chilly bags in the lorry, still, the accident having occurred on 14.10.1993 prior to the amendment of Motor Vehicles Act coming into force the risk in respect of the owner of the goods or the representative of the owner does not get covered by the policy. In the Judgments reported in 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 made liable for payment of compensation in case of death or injury of a person, who is unauthorized and gratuitous passenger in the goods vehicle and whose risk is not covered by the terms and conditions of the policy. In view of the principles laid down in the above decisions and as the deceased was shown to be traveling as an unauthorized gratuitous passenger and even assuming that he was accompanying any goods, the risk not having been covered by the policy, the accident having taken place on 14.10.1993, much prior to coming into force the amendment of the Motor Vehicles Act, no liability can be fastened on the appellant-insurer for payment of the compensation. The impugned Order fastening joint and several liability on the appellant-insurer, is, therefore, held unsustainable and the same is accordingly, set aside. It is however, open to the claimants to recover the entire amount of compensation from the owner of the vehicle. In the result, the appeal is allowed and the order in so far as fastening liability on the appellant-insurer is concerned, is set aside. There shall be no order as to costs. ____​______________ G. V. SEETHAPATHY, J 13th November, 2009 AMD [1] 2003 ACJ 1 (SC) [2] 2005 ACJ 721 [3] I (2009) ACC 417 (SC)