IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY FIFTH DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal Nos.2246, 2252, 2337 and 2338 of 2003; C.M.A. (SR) No.30838 of 2003 and M.A.C.M.A. No.564 of 2006 C.M.A. No.2246 of 2003: Between: The New India Assurance Co. Ltd. rep. by its Regional Manager, Secunderabad .. Appellant AND M. Yaqub and others .. Respondents C.M.A. No.2252 of 2003: Between: The New India Assurance Co. Ltd. rep. by its Regional Manager, Secunderabad .. Appellant AND Kumari Venkatamma and another .. Respondents C.M.A. No.2337 of 2003: Between: The New India Assurance Co. Ltd. rep. by its Regional Manager, Secunderabad .. Appellant AND P. Venkatesh and another .. Respondents C.M.A. No.2338 of 2003: Between: The New India Assurance Co. Ltd. rep. by its Regional Manager, Secunderabad .. Appellant AND Master Krishna and another .. Respondents C.M.A. (SR) No.30838 of 2003: Between: The New India Assurance Co. Ltd. rep. by its Regional Manager, Secunderabad .. Appellant AND Ponakanti Sayamma and others .. Respondents M.A. C.M.A. No.564 of 2006: Between: The New India Assurance Co. Ltd. rep. by its Regional Manager, Secunderabad .. Appellant AND Ponakanti Sayamma and others .. Respondents COMMON JUDGMENT: All these appeals arise out of the same accident and involve the same questions of fact and law and are, hence, being decided through this common judgment. On 16-01-1996 lorry No.MEZ 6038 met with an accident at Malebennur due to the lorry being driven rashly and negligently at high speed and on the lorry turning turtle, four persons including the driver died and other persons travelling by the lorry were injured. The injured were treated at Government hospital, Dhavangeri. Malebennur police registered Crime No.7 of 1996 against the lorry driver. In O.P. No.524 of 1996, the injured claimed to have sustained fracture of right femur, injury to right thigh and other injuries, due to which the four year old petitioner claimed a compensation of Rs.30,000/- including his expenses. In O.P. No.525 of 1996, the injured suffered fracture of middle tibia, left leg and injuries on the right leg and all over the body, for which he claimed a compensation of Rs.30,000/- including Rs.5,000/- towards his expenses. In O.P. No.526 of 1996, the claimant suffered fracture of both bones of left leg and right femur and other injuries all over the body, for which he claimed a compensation of Rs.75,000/- including Rs.20,000/- towards his expenses. In O.P. No.527 of 1996, the two dependents/legal representatives of the deceased Yellamma claimed a compensation of Rs.1,00,000/- claiming the deceased aged 25 years to be earning Rs.100/- per day by doing business in herbal plants. In O.P. No.529 of 1996, the dependents/legal representatives of the deceased P. Krishna, aged about six years claimed a compensation of Rs.50,000/-. In O.P. No.530 of 1996, the dependents/legal representatives of the deceased P. Hanmanthu claimed a compensation of Rs.1,00,000/- claiming the deceased aged about 30 years to be earning Rs.100/- per day from the business in herbal plants. The owner of the lorry sued as the 1st respondent remained ex parte in all the claims and the 2nd respondent insurer contested all the claims denying all the allegations of the claimants including the rash and negligent driving by the lorry driver or the insurance of the lorry with the 2nd respondent or the valid driving licence of the driver. The insurer claimed that the deceased and the injured were travelling in the lorry as unauthorized passengers, in respect of whom the insurer is not liable to pay any compensation. On such pleadings, the Tribunal framed identical issues on the responsibility for the accident and the entitlement of the claimants to compensation. Oral and documentary evidence was recorded in each of the cases separately. The Tribunal rendered the impugned awards firstly concluding that the accident occurred due to the fault of the lorry driver. The Tribunal also observed that during the cross- examination of the Assistant Administrative Officer of the insurer as R.W.1 in all the cases, he admitted that he was not aware whether the inmates of the lorry were carrying goods with them at the relevant time and that the charge-sheet filed by the police stated that the inmates of the lorry were carrying herbal medicinal plants, roots, etc., at the relevant time. On such admissions, the Tribunal considered the insurer to be liable to pay the compensation. In O.P. Nos.524 and 525 of 1996, the Tribunal assessed the compensation payable at Rs.10,000/- each, while in O.P. No.526 of 1996, the compensation was assessed at Rs.35,000/-. In O.P. No. 527 of 1996, the compensation granted was Rs.1,00,000/-, while in O.P. No.529 of 1996, the compensation awarded was Rs.50,000/-. In O.P. No.530 of 1996, the Tribunal assessed a compensation of Rs.1,00,000/- and in all the cases, interest at 8.5 per cent per annum and costs were also awarded, while further directions were given regarding apportionment and disbursement as necessary. The insurer approached this Court with all these appeals mainly contending that the passengers could not have been carried in goods vehicle except in violation of the terms and conditions of the insurance policy and any carriage of herbal medicinal plants or other goods as the personal belongings and luggage of the passengers cannot come within the definition of ‘goods’. The insurer, therefore, desired to be absolved from liability to pay any compensation in all the cases. Smt. A. Jayanthi, learned standing counsel for the insurer and Sri N. Ashok Kumar, learned counsel for the claimants in all the cases are heard, while the owner of the lorry did not enter appearance in any of the appeals. The finding of the Tribunal about the rash and negligent driving of the lorry being the cause for the accident is not disputed and the respective deceased or injured travelling in the lorry at the relevant time and suffering death or injuries due to the accident are also not in question. The appellant or the claimants or the owner did not appear to have questioned the quantum of compensation arrived at by the Tribunal in various cases in any manner. The only point that is agitated in the batch of these appeals is the liability or the absence of it for the insurer on the evidence before the Tribunal. In O.P. No.524 of 1996, which is the subject of C.M.A. No.2338 of 2003, the claimant examined as P.W.1, deposed even in the chief-examination about he along with his family members and other villagers boarding the lorry on its way to sell herbal medicines at their destination. He positively stated that they were carrying herbal luggage with them and did not claim the lorry to have been engaged for carrying such luggage and their travel to be as owners of such goods. During the cross-examination, he admitted that the vehicle was carrying sand and he and 19 others, who boarded it, were sitting on the sand. In O.P. No.525 of 1996, the claimant examined as P.W.1, spoke identically and in O.P. No.526 of 1996 also, the evidence of P.W.1, the injured, was identical. In O.P. No.527 of 1996, the 1st claimant was the husband of the deceased and was also travelling in the same lorry at the time of the accident and his evidence was no different. In O.P. No.529 of 1996, the 1st claimant, the mother of the deceased, was examined to speak similarly and so was the evidence in O.P. No.530 of 1996 of the same witness as the wife of the deceased therein. Therefore, the version of the claimants in all the cases was identical that the lorry was carrying a load of sand and that after entering the lorry mid way, the deceased, the injured and others were sitting on the sand load in the lorry and whatever they were carrying as personal belongings or herbal medicines were of the nature of luggage and not goods, for carrying which the vehicle was engaged. None of the claimants claimed the vehicle to have been engaged for carrying the goods and that the passengers were in it as owners of the goods. It is true that the Assistant Administrative Officer of the insurer examined as R.W.1 in all the cases, was unaware whether the passengers were carrying goods along with them in the accident vehicle, but he could not have had any personal knowledge when he was neither travelling in the lorry nor was an eye witness to the accident and came to depose only about Ex.B.1 insurance policy. The charge-sheet might have referred as admitted by him to the passengers carrying herbal medicines, which cannot be extended to mean that the persons were travelling in the lorry as owners of the goods or to convey that the vehicle was engaged for carrying the goods and the passengers were there as owners of such goods. That apart, Smt. A. Jayanthi, learned standing counsel for the insurer brought to notice that in C.M.A. No.2244 of 2003 arising out of the same accident, a learned Judge of this Court decided on 12-08-2010 that the lorry was not meant for carrying passengers and that the deceased therein was travelling in the said lorry as a passenger. The learned Judge with reference to a series of decisions from the Apex Court held the insurer to be not liable for the death or injury of any such person arising out of any accident while travelling in the goods vehicle. The learned counsel also relied on Deddula Padmavathi v. Maddala Srinivasa Rao[1], wherein a learned Judge of this Court has made it clear that a person, who boards a goods vehicle in the mid way with some luggage like a bag or two, cannot be said to have engaged the goods vehicle for conveyance of his goods and the facts on hand are identical to those under consideration of His Lordship. Similar was the other decision relied on by the learned counsel in Oriental Fire and General Insurance Company Limited v. Bondili Sitharam Singh and others[2], wherein also it was held that the deceased travelling for hire or reward along with his luggage was not covered by the insurance policy. The learned counsel further referred to National Insurance Company Limited v. Baljit Kaur and others[3], on which, in fact, the learned Judge deciding C.M.A. No.2244 of 2003 also relied on. While it is needless to replicate the precedents on the aspect, on the irresistible conclusions arising out of the evidence on record, the deceased or the injured involved in these cases cannot be considered to be owners of the goods being carried in the vehicle and travelling along with them, but have to be considered as passengers travelling in the goods vehicle with their personal luggage. If so, the opinion of the Tribunal that the insurer can still be made liable merely because of their carrying herbal medicinal plants or roots, cannot be sustained and the impugned awards have to be, therefore, reversed in respect of the insurer. However, in all these matters, this Court by its interim directions directed deposit of half of the compensation awarded along with costs and interest and also permitted the respective claimants to withdraw the same. To the extent of the amounts so deposited and withdrawn, the principle of ‘pay and recover’ should be made applicable without referring the insurer to the necessity of any separate legal proceedings for recovery of the same and the owner of the vehicle/1st respondent in the Original Petitions should be made liable for the same to the insurer. The claimants, of course, will have their right to recover the compensation awarded from the 1st respondent in the Original Petitions/the owner of the vehicle. In the result, all the impugned awards in these six appeals are set aside against the appellant and the respective claims against the appellant are dismissed without costs. The same shall have no bearing on the liability of the owner of the vehicle/1st respondent in all the Original Petitions to satisfy the awards as passed by the Tribunal. To the extent of the amounts deposited by the appellant in each of these cases and withdrawn by the respective claimants, the appellant is entitled to recover the same from the 1st respondent in the Original Petitions/owner of the vehicle without the necessity of taking recourse to any other legal proceedings. The appeals are allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 25-01-2011 Svv [1] 2005 ACJ 768 [2] 1996 ACJ 242 [3] (2004) 2 Supreme Court cases 1