APHC010441072005 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] Thursday, the Thirtieth Day of October Two Thousand and Twenty Five Present The Honourable Ms. Justice B.S.Bhanumathi Motor Accident Civil Miscellaneous Appeal No: 3220 of 2005 Between: The New India Assurance Company Limited ...Appellant and Ravanaiah and another ...Respondents Counsel for the appellant: 1. M.R.K.Chakravarthy Counsel for the respondents: 1. V. Eswaraiah Chowdary The Court made the following: 2 M.A.C.M.A.No.3200 of 2005 JUDGMENT: This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (in short ‘the Act’) against the award and decree dated 04.10.2005 in M.V.O.P.No.166 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Tirupati. 2. The appellant is the respondent No.2, the respondent No.1 herein is the claimant and the respondent No.2 herein is the respondent No.1 before the Tribunal. For the purpose of convenience, the parties are arrayed in the same manner as before the Tribunal. 3. The case of the claimant is briefly as follows: a. On 07.10.2002, while the petitioner and some others were travelling in a lorry bearing No.AP 04 U 1275, belonging to the respondent No.1, from Naidupet to Sri Kalahasthi, when the lorry reached near Singamala Village, as the driver of the lorry drove it in a rash and negligent manner, he lost control over the lorry and the lorry fell down by the side of the road. Thus, the claimant sustained fracture injuries to his ribs and multiple injuries all over his body. The other inmates also sustained injuries. All the injured were shifted to the Area Hospital, Srikalahasthi for treatment. A case in Crime No.104 of 2002 was registered by the police of Thottembedu Police Station. The claimant was earning Rs.5,000/- p.m. But, after the accident, he lost his livelihood as he is unable to work. The claimant has been still taking treatment from private doctor and has been spending huge amount for his treatment. The claimant sought compensation of Rs.1 lakh with interest and costs. b. The respondent No.1 remained ex parte. 3 M.A.C.M.A.No.3200 of 2005 c. The respondent No.2 opposed the petition by filing counter denying that the accident occurred due to the negligence of the driver of the lorry and the occupation and earnings of the claimant. Further, the averments in the claim petition were denied, while stating that the driver of the lorry violated the terms of the policy of insurance. This respondent prayed to dismiss the petition. d. The claimant was examined as P.W.1 and following documents were marked on behalf of the claimant: Ex.A1 Certified copy of F.I.R. in Crime No.104 of 2002 of Thottembedu Police Station. Ex.A2 Certified copy of charge sheet. Ex.A3 Certified copy of wound certificate. Ex.A4 Disability certificate. On behalf of the respondent No.2, xerox copy of the policy was marked as Ex.B1. 4. After hearing both parties, the Tribunal allowed the petition granting compensation of Rs.42,000/- payable with interest at the rate of 9% p.a. from the date of the petition till the date of realization with proportionate costs and further holding that the respondents Nos.1 and 2 are jointly and severally liable to pay the same to the claimant and that the respondent No.2 is entitled to recover such compensation paid to the claimant from the respondent No.1 without filing a suit. The rest of the claim was dismissed without costs. 5. Aggrieved by the award and decree this appeal was filed by the respondent No.2 / insurance company, mainly on the ground that it is not liable to indemnify the respondent No.1 since the policy does not 4 M.A.C.M.A.No.3200 of 2005 cover its liability to a gratuitous passenger travelling in goods vehicle which is a lorry in the present case. Further, the appellant challenged the quantum of compensation and the rate of interest as well. 6. Though the respondent No.1 herein / claimant has engaged an advocate, there is no representation. The notice sent to the respondent No.2 herein has not been returned though it was sent to the same address as given before the Tribunal. Moreover, since the respondent No.2 herein remained ex parte before the Tribunal, a memo dated 29.08.2018 was filed by the appellant that no further notice is necessary to the respondent No.2. Accordingly, hearing of the appeal is proceeded. 7. The learned counsel for the appellant submitted that the Tribunal erroneously appreciated the evidence though there is no pleading and proof that the claimant was travelling with goods either as a owner or agent of the owner of the goods and that the Tribunal ought to have held that the claimant was a gratuitous passenger and completely exonerated the insurance company from liability. He further questioned the quantum of compensation and the rate of interest awarded by the Tribunal. 8. As can be seen from the record, there was no express plea taken in the counter that the claimant was a gratuitous passenger and therefore, the insurance company has no liability. As such, there was no issue framed specifically on this aspect. However, arguments were advanced before the Tribunal that the claimant was a gratuitous passenger and the insurance company is not liable to pay compensation, by placing reliance on the decision of the Supreme Court in the case of National Insurance Company Ltd., Vs. Baljit 5 M.A.C.M.A.No.3200 of 2005 Kaur and others1. But, the Tribunal, without examining whether the claimant was a mere gratuitous passenger or was travelling along with goods, held the insurance company is liable to pay as directed in the award noted above, by observing that even in the said case, the insurance company was directed to first pay and then recover. 9. The pleading and evidence of the claimant do not indicate that he was with any goods. Therefore, there cannot be a question as to whether he was travelling in the lorry / goods vehicle in the capacity of owner or agent of the owner of the goods. So, it is clear that the claimant was just a gratuitous passenger or a passenger by paying fare. In the cited case, the Supreme Court categorically held that there is no liability to an insurer to indemnify an insured in respect of liability to a gratuitous passenger as per the Section 147 (1) (b) of the Act, amended in the year 1994; however, the decision has only prospective application. By exercising its extraordinary jurisdiction, the Supreme Court directed the insurance company to first pay the amount of compensation to the claimant and then recover the amount from the insured in the interest of justice. Therefore, the same kind of jurisdiction cannot be exercised by the Tribunal, if it finds that a victim is found to be a gratuitous passenger like in the present case. Therefore, the Tribunal erroneously applied the proposition of law taking aid from the decision in the case of Baljit Kaur (supra). 10. The learned counsel for the appellant further referred the decision of the Supreme Court in the case of National Insurance Company Ltd., Vs. Bommithi Subbhayamma and others2, in which the proposition of law regarding the liability of the insurance company towards a gratuitous passenger in the decision in the case of Baljit 1 2004 (1) ALD 98 2 (2005) 12 SCC 243 6 M.A.C.M.A.No.3200 of 2005 Kaur (supra) has been followed. In this decision pay and recovery by the insurance company was not ordered. 11. Since the claimant could not establish that the policy of insurance issued by the appellant covered his risk, the insurance company is not liable at all. In such a case, an insurance company cannot be directed to pay to the claimant and recover from the insured. It is only when a policy of insurance covers a risk, but there is violation of terms and conditions of policy, an insurance company can be made liable first to pay to the claimant and then recover the amount so paid from the insurer. As such, in the present case, the Tribunal erred in directing the insurance company jointly and severally liable to pay the claimant the compensation amount awarded and then recover the said amount from the insured. Consequently, the award and decree impugned in the appeal are liable to be set aside. 12. The appellant deposited Rs.25,000/- while preferring the appeal. On 30.11.2005, vide order in M.A.C.M.A.M.P.No.5622 of 2005, while granting interim order of stay in the appeal, the appellant was directed to deposit half of the awarded amount, including interest and costs, if any, duly giving credit to the amount, if any, already deposited. As per the order dated 30.06.2006 in M.A.C.M.A.M.P.No.6076 of 2005, the interim stay granted was made absolute on the condition that the claimant shall be entitled to withdraw Rs.14,000/- and the entire amount of costs and interest, without furnishing any security. So, the appellant can be permitted to recover from the insured, instead of the claimant, the amount withdrawn by the claimant, as the claimant is entitled to recover the same from the insured. The appellant can be permitted to withdraw the balance amount deposited by it, still lying in the account before the Tribunal. 7 M.A.C.M.A.No.3200 of 2005 13. Insofar as the quantum of compensation and the rate of interest are concerned, this Court is of the view that there is no reason to interfere with the findings of the Tribunal, as they are just and reasonable based on the evidence on record. 14. In the result the appeal is allowed and the award and decree dated 04.10.2005 in M.V.O.P.No.166 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Tirupati, are set aside to the extent of making the insurance company / respondent No.2 before the Tribunal jointly and severally liable to pay compensation to the claimant and recover the said amount from the insured without filing a suit, while confirming the quantum of compensation and the rate of interest and costs payable. Consequently, the claim petition against the respondent No.2 before the Tribunal is dismissed without costs. Further, the appellant / insurance company is permitted to recover the amount withdrawn by the claimant from the insured without filing a separate suit, and the appellant is permitted to withdraw the balance amount deposited by it still lying in the account before the Tribunal. There shall be no order as to costs. Interim orders granted earlier, if any, shall stand vacated. Pending miscellaneous applications, if any, shall stand closed. __________________ B.S.BHANUMATHI, J Dated: 30.10.2025 NSM 8 M.A.C.M.A.No.3200 of 2005 21 The Honourable Ms. Justice B.S.Bhanumathi Motor Accident Civil Miscellaneous Appeal No: 3220 of 2005 Date: 30.10.2025 NSM