APHC010019692008 IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) Wednesday, the Twenty Third day of April Two Thousand and Twenty Five The Honourable Ms. Justice B S Bhanumathi Motor Accident Civil Between: B. Raghu and C. Usha Rani and others Counsel for the Appellant: Sri Navuluru Krishna Sai, learned counsel appearing on behalf of Sri A Chandrai Counsel for the Respondents: Sri V Veerabhadra Chary The Court made the following: IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) Wednesday, the Twenty Third day of April Two Thousand and Twenty Five Present The Honourable Ms. Justice B S Bhanumathi Motor Accident Civil Miscellaneous Appeal No.2072/2008 ...Appellant thers ...Respondents Counsel for the Appellant: Sri Navuluru Krishna Sai, learned counsel appearing on behalf of Sri A Chandraiah Naidu Counsel for the Respondents: Sri V Veerabhadra Chary The Court made the following: [3311] Miscellaneous Appeal No.2072/2008 ...Appellant ...Respondents 2 BSB, J M.A.C.M.A.No.2072 of 2008 JUDGMENT: This appeal is preferred under Section 173 of the Motor Vehicles Act, 1988 against the award and decree, dated 09.05.2008 in M.V.O.P.No.129 of 2005 on the file of the Motor Accidents Claims Tribunal – cum - VI Additional District Judge, Tirupati, awarding compensation of Rs.1,59,000/- with interest at the rate of 7.5% per annum from the date of the petition till the date of deposit into Court payable by the 1st respondent alone while dismissing the claim against the 2nd respondent. 2. The case of the claimant briefly is as follows: On 08.07.2004, at about 11.30 PM at Balaji Milk Dairy, Tirupati, in between Balaji Milk Godown and main gate, the driver of the milk lorry bearing No.AP03-U-4119 drove it in a rash and negligent manner and hit the petitioner while he was attending natural calls on the left side of the dairy. As a result, the petitioner sustained fracture injury to his left leg and other multiple injuries all over the body. Immediately, he was admitted in S.V.R.R. Hospital, Tirupati. A case in Crime No.94 of 2004 under section 338 I.P.C., was registered against the driver of the milk lorry. The charge sheet was registered as C.C.No.327 of 2004 on the file of the Court of the Judicial Magistrate of I Class, Tirupati. After the accident, the petitioner is unable to lift any weights, bend properly as before the accident, suffering frequent headache and unable to concentrate on his driving work. The petitioner spent Rs.30,000/- for medical expenses as he was treated as inpatient from 09.07.2004 to 18.08.2004 in S.V.R.R. Hospital, Tirupati, and later continued treatment with private doctors. 3 BSB, J M.A.C.M.A.No.2072 of 2008 3. The 1st respondent is the owner and the 2nd respondent is the insurer of the milk lorry and therefore, both the respondents are jointly and severally liable to pay compensation. 4. The 1st respondent remained ex parte. 5. The 2nd respondent opposed the claim by filing counter denying the averments in the petition such as age, occupation, income, nature of injuries, treatment taken and the alleged infirmity etc. It is further contended that the place of accident is inside the factory area which is a private place and as such, the M.V.Act has no application. Further, it is contended that the petitioner sustained injuries for his own negligence by falling from the top of the cabin of the lorry as he was sleeping on it when the vehicle was parked inside the factory compound. But the claim petition was made with a mala fide intention and submitted a false report to the police. 6. On behalf of the claimant, the claimant himself was examined as PW1. S. Venkatesulu was examined as PW2 and Dr. S.Vidya Sagar was examined as PW3. Exhibit A1, certified copy of FIR in Crime No.94 of 2004 of M.R.Palle Police Station, exhibit A2, certified copy of charge sheet in C.C.No.327 of 2004 on the file of the Court of III Additional Judicial Magistrate of I Class, Tirupati, exhibit A3 certified copy of Wound Certificate issued by SVRRGG Hospital, Tirupati, and exhibit X1, xerox copy of case sheet were marked. On behalf of the 2nd respondent, rough sketch of the scene of offence was marked as exhibit B1 and copy of insurance policy was marked as exhibit B2. 7. After hearing both parties, the Tribunal held that the accident was caused due to the negligent driving of the driver of the milk van and assessed the total compensation at Rs.1,59,000/-.(Rs.5,000/- towards 4 BSB, J M.A.C.M.A.No.2072 of 2008 general damages + Rs.1,54,000/- towards loss of earning power and future conveyance and assistance). However, the claim against the 2nd respondent was dismissed on the ground that the place of accident is not a public place basing on the evidence of PW1 that the said place is not accessible to public or the public can pass or enter into the premises of the milk dairy without permission from the authorities or from the security guard on duty. 8. Aggrieved by the order, this appeal is filed on both counts, viz., for dismissing the claim against the 2nd respondent and also challenging the quantum of compensation awarded stating that the permanent disability of the petitioner has not been properly appreciated. 9. The learned counsel for the appellant contended that, having allowed the claim against the 1st respondent, the Tribunal failed to fasten liability on the 2nd respondent. In this regard, it is further contended that if at all the place of accident is not a public place and the M.V.Act is not applicable, the claim against both the respondents is not maintainable, however, the liability was fastened on the 1st respondent whereas it was dismissed against the 2nd respondent. He further submitted that a place which is accessible to any public is a public place irrespective of whether the place is private place and has restricted entry. In this regard, he placed reliance on the decision of Madhya Pradesh High Court in Rajendra Singh Vs. Tulsabai and others1. 10. With regard to the quantum of compensation, he claimed that the Tribunal awarded lower amount of compensation under different heads and it is erroneous to refuse compensation under certain other heads 1 II (2005) ACC 719 5 BSB, J M.A.C.M.A.No.2072 of 2008 like medical expenses, attendant charges, special diet expenses, nourishment etc. 11. The learned counsel for the 2nd respondent submitted that the Tribunal rightly dismissed the petition as it is not a public place. He further submitted that the claimant failed to implead the driver of the offending vehicle as a party to the claim petition and therefore, the whole claim petition is not maintainable. 12. In reply, the learned counsel for the appellant submitted that all the tortfeasors need not be impleaded and since the 1st respondent is vicariously liable for the negligent act of the driver of the offending vehicle, such liability can be established and placed reliance on the decision of this Court in M/s. National Insurance Company Limited Vs. Velchuri Venkata Seshamma and another2. He further contended that without raising such a plea either before the Tribunal or by filing an appeal or cross objection, such an argument cannot be advanced. 13. Answering the same, the learned counsel for the 2nd respondent submitted that since it is a purely question of law, the same can be raised. 14. The first question to be answered is whether the claim under the M.V.Act is maintainable with reference to the place of accident in the present case. It is an apparent error committed by the Tribunal in dismissing the claim against the 2nd respondent on the ground that the place of accident is not a public place while allowing the claim against the 1st respondent under the very same Act. If at all, the place of accident is not a public place, no claim can be made against anyone under the M.V.Act. Irrespective of the same, it is pertinent to mention 2 M.A.C.M.A.No.33 of 2011, dated 09.07.2024 6 BSB, J M.A.C.M.A.No.2072 of 2008 the decision of the Madhya Pradesh High Court, which was relied on by the learned counsel for the appellant wherein it was held at paras 4, 5, 8 and 12 as follows: “4. The definition of ‘public place’ in the Motor Vehicles Act, 1939 in Section 2(24) was identical. It is as under: 2(24) ‘public place’ means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or straid at which passengers are picked up or set down by a stage carriage. 5. The words “whether a thoroughfare or not” and “the place to which the public have a right of access” are relevant in the present context and these are of crucial importance and great significance to arrive at the conclusion whether the place is a public place or not. A ‘thoroughfare’ as per Oxford English Dictionary means “a public way unobstructed and open at both ends, especially a main road or street or a highway”. A private road or place as per contra distinguished from a thoroughfare, as per definition, would be a public place if the public have a right of access to it. Even if the right of access is with express or implied permission of its owner, it would be covered by definition of ‘public place’. The compound of the cement factory was being frequented by heavy vehicles in the course of the business with the express or implied consent of its owner and, therefore, it was a place to which the public had the right of access. 8. The interpretation of the words ‘public place’ in the decision in Narsingh Vs. Balkishan3 of this Court (Madhya 3 I (1987) ACC 306 # 1988 ACJ 288 7 BSB, J M.A.C.M.A.No.2072 of 2008 Pradesh High Court) was heavily relied upon by the Full Bench of the Bombay High Court in Pandurang Chimaji Agale Vs. New India Life Insurance Co.4. The Full Bench after an exhaustive survey of the entire case law held that: The term ‘public place’ is a term of the Act, the same having been defined specifically by sub-clause (24) of Section 2 of the Act: The first thing to remember with regard to the definition is that it is an inclusive one. Secondly, it makes it clear that any road, street, way or other place, whether a thoroughfare or not, is a public place for the purposes of the Act, the only condition being that the public should have a right of access to it. Thirdly, the expression used in the definition is ‘a right of access’ and not ‘access as of right’. Lastly, when it states that any place or stand at which passengers are picked up or set down by a stage carriage, is a public place, it shows that it is not so much concerned with the ownership of the place as with its user... The definition of ‘public place’ under the Act is, therefore, wide enough to include any place which members of public use and to which they have a right of access……” 12. It will thus appear that almost all the High Courts including those who held a contrary view earlier are veering round to the illuminating dictum of Sawant, J (as His Lordship then was) in the Full Bench case of the Bombay High Court.” It was finally held at para No.14 as follows: “In view of the above discussion the compound of Diamond Cement Factory at Damoh to which the public had access and 4 II (1986) ACC 75 # 1988 ACJ 674 8 BSB, J M.A.C.M.A.No.2072 of 2008 the vehicles were going there for the business purposes and where the accident occurred was definitely a ‘public place’ and, therefore, the two insurance companies in the present case cannot escape their liability and are bound to indemnify their insured persons and pay the compensation directly to the applicants. They are also jointly and severally liable with drivers and the owners of the vehicles to compensate the applicants.” 15. In the light of the definition of ‘public place’ in Section 2(24) of the M.V.Act and the above decision, it is very much clear in the present case that the place of accident is also a public place. Moreover, the finding of the Tribunal that it is a public place and holding that the 1st respondent is liable to pay compensation is undisturbed as no appeal was preferred by the 1st respondent or such a finding has not been challenged by the 2nd respondent by filing a separate appeal or by filing cross objections in this appeal. If it is a public place, application of law under the M.V. Act is equal to both the respondents. 16. Insofar as non-joinder of necessary parties, in the decision of this High Court in Bondugula Samyuktha Devi Vs. T.Sreedhar Reddy and others5, it was held that the claim cannot be dismissed even in the absence of a driver as a party. “5. It is well known that in a claim petition filed under the Motor Vehicles Act, 1988 or the Motor Vehicle Act 1939, the driver of the vehicle that caused the accident is not a necessary party. Though the driver is not made a party, the 5 2005 ACJ 170 9 BSB, J M.A.C.M.A.No.2072 of 2008 owner is vicariously liable to pay the compensation payable to claimant(s), under the theory of vicarious liability.” 17. Moreover, it is pertinent to mention that if the 2nd respondent preferred the appeal, even if legal aspect is not raised in the grounds of appeal, it may be urged during the course of arguments. But, this is not an appeal preferred nor any cross objection filed by the 2nd respondent and even before the Tribunal, no such defence was taken or argued. It is impermissible for the 2nd respondent to contest the appeal on that ground. 18. Insofar as the quantum of compensation is concerned, the Tribunal awarded appropriate compensation and the same does not require any interference. 19. In the result, the appeal is allowed in part by fastening the liability to pay compensation against the 2nd respondent as well and setting aside the award and decree, dated 09.05.2008, in M.V.O.P.No.129 of 2005 of the Chairman, MACT-cum-VI Additional District Judge, Tirupati, dismissing the claim against the 2nd respondent. The rest of the award regarding the quantum of compensation, interest and the liability against the 1st respondent remains intact. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed. __________________ B.S.BHANUMATHI, J 23.04.2025 RAR