2013(3) ALL MR (JOURNAL) 6
(ANDHRA PRADESH HIGH COURT)

C. PRAVEEN KUMAR, J.

Muram Mohan Vs. Gundumogula Venkata Rama Rao & Anr.

MACMA No. 421 of 2005

14th September, 2012

Petitioner Counsel: Sri P. Sridhar Reddy
Respondent Counsel: Sri A. Ramalingeswara Rao

Motor Vehicles Act (1988), Ss.147(1)(b), 2(13), 2(14) - Insurer's liability - In respect of owners of goods travelling in goods vehicle - Invocation - Persons boarding the goods vehicle midway with a baggage of goods - Cannot be said to be 'owner of goods' within the meaning of S.147(1)(b)(1) r/w. Ss.2(13) and 2(14) of the Act - They are 'gratuitous passengers' to whom insurer is not liable.

A reading of Section 2(13) of the Act would indicate that weight and volume of bags carried by the passenger would have relevance to find out whether they are luggage or goods. Further, Section 147 (1)(b)(1) of the Act reads as "including owner of the goods, or his authorized representative carried in the vehicle". The intention of the law makers appears to be to cover the risk of owner of the goods or his representative, who actually engage the goods vehicle for transport of goods from one destination to another, but does not include persons boarding the goods vehicle midway with a baggage of goods or luggage by paying some money to the driver of the vehicle. Few bags of potatoes carried by the injured are not of such a volume which cannot be carried either in a bus, train or small van. The said baggage does not require a goods vehicle.

2004(5) ALL MR 238 (S.C.), 2003 (1) ALD (18) (SC), 2005 (2) ACJ 721 (SC), 2007(3) ALL MR 312 (S.C.) Ref. to. [Para 11,17]

Cases Cited:
Oriental Fire and General Insurance Co. Ltd. Vs. Ponugoti Ramanamma, 1990 ALT (1) 194 [Para 7]
National Insurance Co. Ltd. Vs. Baljit Kaur, 2004(5) ALL MR 238 (S.C.)=2004(1) ALD 98 (SC) [Para 13]
New India Assurance Co. Ltd. Vs. Asha Rani, 2003 (1) ALD 18 (SC)=2003 ACJ 1 (SC) [Para 14]
National Insurance Co. Ltd. Vs. Bommithi Subbayamma and Others, 2005(2) ACJ 721 (SC) [Para 15]
New India Assurance Co. Ltd., Vs. Vedwati & Others, 2007(3) ALL MR 312 (S.C.)=2007 (1) DT 387 (SC) [Para 16]


JUDGMENT

JUDGMENT :- Aggrieved by the quantum of compensation awarded in OP No.628/1994 on the file of Motor Accidents Claims Tribunal-I Additional District Judge, Nellore, and also for not fastening the liability on the insurer to pay the compensation, the claimant preferred the present Motor Accidents Civil Miscellaneous Appeal.

2. The brief facts relevant for consideration in this appeal are as follows:

The claimant was a resident of Karumitta village in Tada Mandal, Nellore District. He filed claim petition under Sections 140 and 166 of the Motor Vehicles Act, 1988 (for short "the Act") claiming compensation at the rate of Rs.50,000/- on the ground that on 17-7-1994 at about 5-30 AM, he boarded a lorry bearing registration No. AAW 4169 belonging to the first respondent herein at Bheemulavaripalem check post with a load of one gunny bag of Alwar Gaddas (sweet potatoes) for transporting the same to Sullurpet for the purpose of sale by paying freight charges to the driver of the said lorry. It is stated that on the way near Akkampet, the driver of the said lorry drove the same in a rash and negligent manner and in high speed hit another lorry which was coming in opposite direction. In view of the said accident, the claimant sustained grievous injuries on his fore head, right ankle and also a fracture in his right thigh. Immediately, he was taken to Madras General Hospital for treatment. Thus he claimed a sum of Rs.50,000/- as compensation inclusive of loss of earnings during the period of his treatment.

3. The first respondent who is shown as owner of the vehicle in the accident remained ex parte. The second respondent-insurance company filed counter admitting that the lorry bearing No.AAW 4149 stood insured with them but however denied the manner in which the accident took place. It is further pleaded that the claimant was travelling in the said vehicle as unauthorized passenger, therefore, the insurance policy does not cover his risk. However, they admit that the vehicle was insured with them and the policy was in force at the time of accident.

4. The tribunal after considering the evidence of P.Ws.1 and Exs.A-1and A-2 ie., FIR and charge-sheet held that the accident occurred due to the fault of the driver of the vehicle. The said finding remained unchallenged as no appeal has been preferred either by the owner of the vehicle or the insurance company. Further, the tribunal awarded a sum of Rs.22,700/- as compensation to the claimant to be paid by the owner of the vehicle.

5. In spite of service of notice on respondent No. 1 (owner of the lorry) on 30-11-2003, none entered appearance on his behalf. Heard the learned counsel for the claimant as well as learned Standing Counsel for the second respondent-Insurance Company.

6. The short question that arises for consideration in this MACMA is whether the insurer is liable to compensate a person travelling in a goods vehicle (lorry) with couple of bags of goods (sweet potatoes)?

7. The learned counsel for the appellant-claimant mainly contends that as the policy was in force at the time of accident and as the claimant was travelling in the said goods vehicle as owner of the goods, the insurance policy covers his risk. The learned counsel for the appellant while relying on the judgment of this court in ORIENTAL FIRE AND GENERAL INSURANCE CO.LTD., V. PONUGOTI RAMANAMMA 1990 ALT (1) 194 would contend that the said judgment squarely applies to the facts in issue and that the insurance company is liable to compensation.

8. On the other hand, learned Standing Counsel for the second respondent-insurance company contends that the appellant-claimant was travelling in the said vehicle as a gratuitous passenger and that the insurance company is not liable to indemnify the owner.

9. The claimant who examined himself as P.W.1 deposed that he loaded four gunny bags of sweet potatoes by paying Rs.40/- towards luggage charges to the driver and that he was travelling in the said vehicle as a owner of goods. But in the cross-examination, P.W.1 admitted that he was a mid way goods owner and got into the lorry on its way and along with him, three more persons were travelling with their goods. Therefore, the evidence of P.W.1 clearly establishes that the claimant travelled in the said lorry along with gunny bags of sweet potatoes and by that time three more persons were travelling in the said lorry. It is not a case where the claimant engaged the lorry for transportation of goods.

10. Section 2 (13) and 2(14) of the Motor Vehicles Act, 1988 defines goods and goods carriage, which are as hereunder:

"goods" includes live- stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle;

"goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;

Rule 252 of the A.P. Motor Vehicles Act, which is also relevant for deciding the issue on hand reads as :

"Carrying of persons in goods vehicle carriage:- No person shall be carried in the cab of a goods vehicle beyond the number for which there is seating accommodation at the rate of 284 millimeters measured along the seat, excluding the space reserved for the driver for each person and not more than seven persons in all shall be carried in any goods vehicle.

(2) No person shall be carried in a goods vehicle upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle and in no case shall any person be carried in a goods vehicle, in such a manner that any part of his person when he is in sitting position is at a height exceeding 3 meters from the surface which the vehicle rests.

(3) No person other than a person connected to the conveyance of goods shall travel in a goods vehicle.

(4) Notwithstanding the provisions of sub-rule (1) the Regional Transport Authority or the State Transport Authority, may subject to such conditions as it thinks fit allow a large number of persons to be carried in a goods vehicle;

(5) Nothing in this rule shall be deemed to authorize the carriage of any person for hire or reward on any goods vehicle, unless there is in force in respect of the vehicle a permit authorizing the use of the vehicle for such purpose, and save in accordance with the provisions of such permit."

11. A reading of the above provisions of the Act would show that carrying couple of bags of sweet potatoes by a passenger and boarding the vehicle midway, as admitted by him, would not become goods within the meaning of Section 2 (13) of the Act, as the luggage carried do not fall within the meaning of goods as defined in Section 2(13) of the Act. A reading of Section 2(13) of the Act would indicate that weight and volume of bags carried by the passenger would have relevance to find out whether they are luggage or goods. Further, Section 147 (1)(b)(1) of the Act reads as "including owner of the goods, or his authorized representative carried in the vehicle". The intention of the law makers appears tobe to cover the risk of owner of the goods or his representative, who actually engage the goods vehicle for transport of goods from one destination to another, but does not include persons boarding the goods vehicle midway with a baggage of goods or luggage by paying some money to the driver of the vehicle. Few bags of potatoes carried by the injured are not of such a volume which cannot be carried either in a bus, train or small van. The said baggage does not require a goods vehicle more so a lorry. Further, as per Rule 252(3) of the A.P.Motor Vehicle Rules, no person other than the person connected to "the conveyance of the goods" shall travel in the goods vehicle. The goods vehicle is intended to transport goods and cannot be used as stage carriage since the emphasis is on the word "conveyance of goods". Therefore, a person who boards the goods vehicle in the midway with some baggage cannot be said to have engaged a goods vehicle for conveyance of his goods.

12. The judgment relied upon by the learned counsel for the appellant-claimant is not attracted to the facts in issue as it was a case dealing with the applicability of Sec. 95 of the Motor Vehicles Act, 1939. In view of the relevant provisions in Motor Vehicles Act, 1988 vis-à-vis Motor Vehicles Act, 1938, the meaning of words "any person" in Section 147 of the Act must be read having regard to the context in which it has been used.

13. The Supreme Court in NATIONAL INSURANCE CO. LTD., V. BALJIT KAUR 2004(1) ALD 98 (SC) : [2004(5) ALL MR 238 (S.C.)] held as follows:

"By reason of the 1994 Amendment what was added is "including the owner of the goods or his authorised representative carried in the vehicle". The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.

14. In NEW INDIA ASSURANCE CO., LTD., V. ASHA RANI 2003 (1) ALD 18 (SC)=2003 ACJ 1 (SC), the apex Court held as follows:

". Keeping in view the provisions of 1988 Act, it can be said that as 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 the goods vehicle, the insurer would not be liable therefor.

.. An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability as provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid."

It was further held as follows:

"It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the Legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people."

15. In NATIONAL INSURANCE CO.LTD. VS. BOMMITHI SUBBAYAMMA AND OTHERS 2005(2) ACJ 721 (SC), it was held as follows:

"Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people

16. In NEW INDIA ASSURANCE CO.LTD., VS. VEDWATI & OTHERS 2007 (1) DT 387 (SC) : [2007(3) ALL MR 312 (S.C.)] the apex Court held as follows:

"The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor".

17. Therefore, by no stretch of imagination, it can be said that the provisions of Motor Vehicles Act more so Sec.147 of the Act can be invoked to hold that the claimant was the owner of the goods and that he hired the vehicle for the purpose of transporting the goods. From the facts and circumstances of the case, the inevitable conclusion would be that the claimant was travelling in the said vehicle as gratuitous passenger and the insurer is not liable to pay any compensation.

18. The learned counsel for the appellant/claimant contends that the amount of compensation awarded is too meager. P.W.1 in his evidence deposed that he sustained injury on right parietal region, fracture of left thigh and an injury to ankle of right leg. He was admitted in Stanley Hospital, Madras as an inpatient for a period of 15 days. He further deposed that operations were conducted on his left thigh and on forehead and iron plates and rods were fixed in his left leg. He claims that he is unable to walk properly and is getting pain. He claims to be earning Rs.50/- per day before the accident. In support of his claim, he produced Ex.A-3-wound certificate and Ex.A-4-copy of the extract of accident register. Ex.A-4 which is a Xerox copy of accident register of the Madras Government Hospital and the discharge summary annexed to Ex.A-4 would show that the claimant suffered six injuries in the accident. The said certificate also shows that he suffered a severe head injury, which necessitated some surgery. No doctor was examined to describe the nature of injuries sustained and the disability, if any. Therefore, the compensation has to be assessed only on the premise that the claimant has suffered grievous injuries which did not result in any permanent or temporary disability. The fact that the claimant took treatment at Madras General Hospital and he was an inpatient there for sometime is not in dispute. The tribunal after considering the material on record awarded the amount of Rs.22,700/- towards pain and suffering, medical expenses, extra nourishment, attendant charges and loss of earnings which appears to be meager.

19. Out of the six injuries sustained by P.W.1, one injury was found to be grievous in nature. The tribunal awarded a sum of Rs.10,000/- towards pain and suffering for six injuries. In view of the fact that the claimant was hospitalized and also underwent surgery, the compensation of Rs.10,000/- awarded towards pain and suffering is restricted only to the grievous injury sustained by the claimant and a further sum of Rs.7,500/- is awarded towards pain and suffering for the five simple injuries. It is not in dispute that the claimant took treatment in Government Hospital at Chennai and was in-patient in the said hospital for sometime. Hence, the amount of Rs.2,500/- awarded by the Tribunal towards transport, attendant land extra nourishment charges is enhanced to Rs.7,500/-.

20. Though the claimant has not lead any evidence with regard to his income, in the circumstances of the case and in view of the fact that he was doing some agricultural work, his daily income can be fixed at Rs.50/-, which any able body person can earn. Thus, the amount towards loss of earnings during the period of treatment and for sometime thereafter is would be Rs.4,500/-.

21. In view of the findings given above, the compensation awarded to the claimant is enhanced from Rs.22,700/- to Rs.40,200/-. The enhanced compensation of Rs. 17,500/- will carry interest @ 6 % per annum from the date of the petition till the date of payment.

22. With the above observation, the Civil Miscellaneous Appeal is allowed in part by maintaining the finding with regard to liability of the first respondent-lorry owner to pay the compensation amount to the claimant. Further, the decretal amount may be recovered by the claimant from the owner of the lorry by initiating appropriate proceeding before the executing court. There shall be no order as to costs.

Appeal partly allowed.