THE HON’BLE MR JUSTICE R. KANTHA RAO M.A.C.M.A.NO.94 OF 2012 DATED: 09.11.2012 BETWEEB: United India Insurance Co.Ltd. .. Appellant And Tholikonda Akkamma and others .. respondents THE HON’BLE MR JUSTICE R. KANTHA RAO M.A.C.M.A.NO.94 OF 2012 JUDGMENT: This appeal is filed by the United India Insurance Company Limited against the Award dated 14.09.2001 passed by the Motor Accident Claims Tribunal-cum-District Judge, Ranga Reddy, at L.B.Nagar in O.P.No.1309 of 1998. 2. I have heard the learned counsel appearing for the insurance company and the respondents/claimants. 3. The deceased T. Rosaiah, aged 36 years, businessman, while travelling in the lorry bearing No.AAT 4381 by transporting Shabad Stones on 20.09.1998 was involved in the accident at about 19 hours, when the said lorry was crossing a culvert near Manchanapally Village, Chevella, Ranga Reddy District, and fell down due to heavy flow of water. 4. The respondents/claimants filed a claim case before the Tribunal under Section 166 of the Motor Vehicles Act seeking compensation of Rs.5 lakhs claiming the deceased to be a businessman earning Rs.5,000/- per month. The learned Tribunal below after making enquiry into the claim, basing on evidence considered the deceased to be a businessman took his income at Rs.3,900/- per month, computed compensation and awarded an amount of Rs.4,82,400/- with interest @ 12% per annum from the date of petition till the date of realization. 5. Assailing the said award, the insurance company filed the present appeal contending that the compensation granted is on higher side and as the deceased was travelling in the lorry which is a goods vehicle as a gratuitous passenger, the insurance company is not liable to pay compensation to the claimants. 6. Earlier, learned single Judge of this Court holding that the deceased was gratuitous passenger travelling in a goods carriage, took the view that the appellant/insurance company is not liable to pay compensation to the claimants and the owner alone is liable to pay the same. The learned Single Judge of this Court however, held that the compensation if any, paid to the respondents 1 to 6 after passing of the impugned award or during pendency of the appeal shall not be recovered from them and the insurance company can recover the same from the owner of the offending vehicle. 7. Thereafter, the claimants filed review M.A.C.M.A.M.P.No.897 of 2011 in C.M.A.SR.No.33664 of 2002 seeking review of the judgment on the ground that the learned Single Judge overlooked the material fact that the deceased was the owner of the goods travelling along with his goods in the lorry at material time of accident and by virtue of Section 147(1)(b)(i) of the Motor Vehicles Act the owner of the goods travelling in a vehicle is considered as a third party covered under the policy in view of the dicta, in NEW INDIA ASSURANCE COMPANY v ASHA RANI[1] and contending that as there was an error apparent on the face of the record relating to a very material fact urged before the learned Single Judge to review the judgment and to record a finding that the appellant/insurance company is liable to pay compensation to the claimants. 8. The learned Single Judge recalled the judgment, dated 20.03.2011 passed by him in C.M.A.SR.No.33664 of 2002 allowed the review petition on the limited ground of setting aside the judgment alone. The learned Single Judge did not examine the question as to whether the deceased was travelling in the lorry at the time of accident with goods in which event the insurance company is liable to pay compensation to the claimants. The learned Single Judge directed to post the matter before the appropriate Bench to determine the said question. Thus, now the appeal is again before this Court for adjudication on the said issue. 9. Since the judgment rendered by the learned Single Judge was set aside by him, this Court has to adjudicate all the questions involved in the appeal afresh basing on the facts and circumstances of the case and also taking into consideration the evidence forthcoming. 10. As regards the quantum of compensation, it is specifically mentioned in the first information report and the charge sheet which are available on record that the Shabad stones belonged to the deceased and he was transporting them at relevant time. The oral evidence of PWs.1 and 2 also revealed before the learned Tribunal below that the deceased was doing business and he was said to be a maker of cement water tanks and said to be selling them and he was aged 36 years on the date of accident. The learned Tribunal therefore, did not commit any mistake in considering him to be a businessman and earning Rs.3,900/- per month. The compensation therefore, granted by the learned Tribunal below on the said basis is not on higher side and it does not require any interference in this appeal. 11. The crucial question is whether the deceased was the owner of the goods travelling in the lorry, which is a goods vehicle at the time of accident and if so, having regard to the facts and circumstances of the case, the insurance company is liable to pay compensation to the claimants. 12. The contents of the FIR and the charge sheet which were available on record clearly disclose that the deceased at material time was transporting the shabad stones in the said lorry and he was proceeding with the lorry with his goods. According to the claimants, he was sitting in the cabin of the lorry. Now, the appellant/insurance company sought to contend that the deceased was travelling in the lorry sitting on the load of shabad stones and therefore, the insurance company is not liable to pay compensation. 13. The appellant/insurance company in the counter filed by it before the Tribunal below contended that the vehicle was not at all involved in the accident, that the accident was not due to the rash and negligent driving of the driver of the vehicle and that the driver had no valid driving license to drive such vehicle. There is no contention by the appellant/insurance company that the deceased was travelling by sitting on the shabad stones loaded in the lorry and thus, the insurance company is not liable to pay compensation. 14. Learned counsel for the insurance company also did not make any suggestions to PWs.1 and 2 while cross-examining them to the effect that the deceased was sitting on the shabad stones loaded on the lorry. For the first time, the learned counsel appearing for the appellant/insurance company took the plea that the deceased was travelling on the load of stones kept in the lorry and therefore, the insurance company is not liable to pay compensation to the claimants. 15. The learned counsel for the insurance company relied on NATIONAL INSURANCE COMPANY LIMITED v CHOLLETI BHARATAMMA AND OTHERS[2] wherein it was held as follows: “The Act does not contemplate that a good carriage shall carry a large number of passengers with a small percentage of goods as the insurance policy considerably covers the death or injuries either of the owner of the goods or his authorized representative. The provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, and the insurers would not be liable therefor. The words “injury to any person” in Section 147(1)(b) would only mean a third party and not a passenger travelling in a goods carriage whether gratuitous or otherwise.” 16. The learned counsel would argue basing on the afore-cited decision that in the present case also the insurance company is not liable to pay compensation to the claimants. 17. In the instant case, the specific contention of the claimants is that the deceased was transporting Shabad stones in the lorry and he was travelling in the said lorry at material time as owner of the said stones. There is no specific denial of the said fact by the insurance company either in its counter or from the tenor of the questions put by its counsel in cross-examination of the witnesses for the claimants. The claimants by positive evidence proved that the deceased was travelling in the lorry as owner of the goods. Absolutely, there was no evidence let in by the insurance company saying that the deceased was sitting on the load of shabad stones. Moreover, the insurance company without taking any such plea before the Tribunal in its counter shall not in my view be permitted to take the plea for the first time in the appeal while arguing the case. The appellate Court is not supposed to examine all the contentions raised in the appeal by the insurance company without there being any foundation of the said contentions in its version before the Tribunal. If every such plea available to the insurance company either by virtue of the provisions of the Act or under the terms and conditions of the policy was taken surprisingly for the first time in the appeal it would jeopardize the rights of the claimants. In the instant case, therefore, I am of the considered view that the insurance company is precluded from raising the said contention. 18. There is abundant evidence in this case showing that the accident in this case was occurred on 20.09.1998, by which time the owner of the goods was travelling in the lorry along with his goods. Therefore, by virtue of the provisions of Section 147(1)(b) (i) of the Motor Vehicles Act which came into effect from 14.11.1994, the owner of the goods travelling in a goods vehicle is considered to be a third party under the policy and the insurance company is liable to pay compensation to the claimants. Thus, in the instant case, notwithstanding the fact that the deceased was travelling in a goods vehicle, he being the owner of the shabad stones being carried in the said vehicle, the insurance company has statutory liability to pay compensation to the respondents/claimants. 19. For the foregoing reasons, the appeal filed by the insurance company fails and the same is dismissed. There shall be no order as to costs. _________________ Date: 09.11.2012 R. KANTHA RAO, J Note: L.R. copy to be marked B/o kvrm THE HON’BLE MR JUSTICE R. KANTHA RAO M.A.C.M.A.NO.94 OF 2012 DATED: 09.11.2012 [1] (2003) 2 SCC 223: AIR 2003 SC 607 [2] (2008)1 SCC 423