IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE ELEVENTH (11TH) DAY OF OCTOBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.674 of 2010 Between: United India Insurance Co.Ltd., Tirupati … Appellant And: P.Vimala & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.674 of 2010 JUDGMENT: This appeal is directed against the order dated 05.05.2009 in OP No.49 of 2007 on the file of the MACT cum III Additional District Judge, Tirupati, wherein, the claim of the respondents 1 to 5 herein, was allowed in part awarding compensation of Rs.4,29,000/- with interest at 7.5% per annum from the date of petition. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents 1 to 5 herein. Perused the record. 3. The respondents 1 to 5 herein filed claim application under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.5,00,000/- for the death of the deceased P.Mani, who died in a motor vehicle accident that occurred on 11.09.2006. The first claimant is the wife, and claimants 2 and 3 are the minor children of the deceased and the claimants 4 and 5 are the parents of the deceased. According to the claimants, on that day, the deceased and others, loaded grass in a tractor-trailer bearing No.AP 03T3707 and 3706 and went to G.D.Nellore and after unloading the same, they were returning to R.Mallavaram village and on account of the rash and negligent driving of the vehicle, it dashed against PCR godown gate, as a result of which, the deceased sustained injuries and died on the spot and the other injured persons, were shifted to SVRR Hospital, Tirupati. According to the claimants, the deceased was working as a coolie engaged for the purpose of loading and unloading of grass on the tractor belonging to the 6th respondent herein. A case in Cr.No.119 of 2006 was registered against the driver of the tractor by Renigunta Police. The deceased was aged 34 years and was earning Rs.200/- per day. 4. The 6th respondent herein filed counter, stating that the compensation payable if any is to be paid by the appellant-insurance company, as the vehicle was duly insured. The appellant herein- insurer filed counter, opposing the claim and denying their liability to pay the compensation. During the enquiry, PWs.1 to 3 were examined and Exs.A.1 to A.5 were marked on behalf of the claimants. RWs.1 and 2 were examined and Exs.B.1 and B.2 copies of polices were marked on behalf of the appellant-insurer. Ex.X.1 registration certificate of the vehicle and Ex.X.2 driving licence of the driver were marked. 5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred on account of the rash and negligent driving of the vehicle by its driver. The said finding is not seriously disputed in the present appeal. The Tribunal awarded total compensation of Rs.4,29,000/- with interest at 7.5% per annum, holding that the owner and insurer are jointly and severally liable to pay the same. Aggrieved by the same, the insurer filed the present appeal. 6. The main contention of the learned counsel for the appellant is that the policies Exs.B.1 and B.2 cover the risk of only one employee, who is driver of the tractor and it does not cover the risk of the deceased, who even according to the claimants, was travelling as a coolie. Learned counsel for the appellant would contend that Exs.X.1 and X.2 would show that the driver was not authorized to drive the transport vehicle and therefore, 6th respondent herein has violated the terms and conditions of the policy and hence, the appellant-insurer is not liable to reimburse the compensation awarded against the owner. Learned counsel for the claimants-R.1 to R.5 would however seek to justify the award. 7. Even according to the claimants, the deceased was travelling in the tractor as a coolie for the purpose of loading and unloading of the grass. Ex.A.1 FIR, Ex.A.2 inquest report would also show that the deceased was a coolie, engaged for the purpose of loading and unloading of the grass and while returning from G.D.Nellore, the vehicle dashed against the PCR godown gate and over turned. Ex.A.3 charge sheet also contains the same version. Ex.B.1 policy would show that apart from third party basic premium and premium for the trailer, a sum of Rs.25/- is paid as premium towards workmen compensation for one employee. Ex.B.1 does not disclose that any additional premium was collected for coverage of risk of any coolie. 8. RW.1 Assistant Divisional Manager of the appellant company also deposed that the owner has paid the premium in respect of only one employee i.e., driver and the same does not cover the risk of coolies. He further deposed that the deceased was unauthorized person and is not entitled for any compensation against the insurer. The testimony of RW.1 coupled with Ex.B.1 would therefore establish that the policy covers the risk of only one employee, who is the driver, but not any coolie. The owner of the vehicle had not stated in the counter filed by him that the deceased was engaged by him as an employee and his risk is covered by the policy. The Tribunal fastened joint liability on the insurer on the ground that in the counter filed by the insurer it is stated that the premium is paid covering the risk of only one coolie. Towards end of para 7 in the counter, it is stated by way of manuscript that the first respondent paid premium for only one coolie. The said alteration by way of addition occurring towards end of para 7 of the counter of the insurer is not attested by any one. It is not known when, how and under what circumstances, the said alteration was made and whether it was to the knowledge of the Assistant Manager of the insurer, who signed and verified the counter. Ex.B.1 policy clearly shows that the risk of only one employee arising under the Workmen’s Compensation Act is covered but not the risk of any collie. When the document Ex.B.1 itself speaks as to the nature and extent of liability undertaken by the insurer, the averments in the counter contra to the document, is of no avail, especially when the said averments appearing in the manuscript, unattested, is under suspicion. The said averment, which is contrary to the other averments in the counter, and the stand taken by the insurer in the counter, and also in the evidence, does not therefore operate as an admission. When RW.1 has testified that the policy does not cover the risk of coolies and the premium paid is only to cover the risk of one employee i.e., driver, he is not confronted in the cross-examination with any such alleged admission contained in the counter. When Ex.B.1 policy, which governs the contractual obligation between the owner and the insurer, clearly states that the risk of only one employee is covered and when the deceased was admittedly not an employee of the owner of the vehicle, but was engaged only as a coolie for the day’s work, no liability can be fastened on the insurer based on the unattested interpolation occurring in the counter of insurer. 9. Learned counsel for the appellant-insurer would contend that the question of covering the risk of one coolie does not arise, inasmuch as, no coolie is supposed to travel on the tractor-trailer and no sitting accommodation is also provided for them and the only seat available on the tractor is meant for the driver and the risk of the said driver alone, who is employee of the owner of the vehicle, is covered by Ex.B.1 and not the risk of any coolie. The undiscredited testimony of RW.1 coupled with the terms of the policy Ex.B.1, supports the said contention that it is only the risk of the driver, who is an employee of the vehicle for workmen compensation is covered by Ex.B.1 and not the risk in respect of any coolie. 10. In view of the finding that the risk of the deceased is not covered by policy Ex.B.1 and therefore, the appellant-insurer is not liable to reimburse the amount of compensation to the owner of the vehicle, it is considered unnecessary to go into the question whether or not, the driver was having a valid and effective driving licence and whether or not there has been any violation of the terms and conditions of the policy by the owner. 11. In the circumstances, as the risk of the deceased is not covered by policy Ex.B.1, the appellant-insurer cannot be made liable for payment of compensation. The impugned order, fastening the joint liability on the appellant-insurer, is accordingly modified exonerating the appellant-insurer from liability to pay the compensation. 12. Having regard to the fact that the claimants are poor agricultural labourers, it is considered that the amount if any already withdrawn by them in pursuance of the award passed by the Tribunal or interim order dated 16.09.2010 by this court, may not be recovered from them. It is open to the appellant-insurer to recover the said amount also from the owner of the vehicle. The claimants are at liberty to recover the balance amount of the award from the owner of the vehicle. 13. In the result, the appeal is allowed as stated above. No order as to costs. G.V.SEETHAPATHY, J Date: 11.10.2011 bss