APHC010031122014 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3459] THURSDAY, THE THIRTEENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM CIVIL MISCELLANEOUS APPEAL NO: 125/2014 Between: 1. UNITED INDIA INSURANCE COMPANY LTD.,, REP.BY ITS DIVISIONAL MANAGER, DWARAKANAGAR, VISAKHAPATNAM. ...APPELLANT AND 1. EGALA NAGAYAMMA ANOTHER, W/O. LATE NOOKA RAJU, R/O. GUNDUPALA VILLAGE, GOLUGONDA MANDAL, VISAKHAPATNAM DISTRICT. 2. D VEERA BABU, S/O. RAMANA OWNER OF THE TRACTOR & TRAILER R/O. D.NO. 8-129, BALIGATTAM, NARSIPATNAM MANDAL, VISAKHAPATNAM DISTRICT. ...RESPONDENT(S): Appeal Under Section_____against ordersto set aside the Order in WC No. 4 of 2010 on the file of the Court of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour at Narsipatnam, dated 20th January, 2012 and pass IA NO: 1 OF 2012(CMAMP 897 OF 2012 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 41 days in preferring the appeal against the order and decree in WC No. 4 of 2010 on the file of the Court of the 2 JS,J CMA No.125/2014 Commissioner for Workmen's Compensation and Assistant Commissioenr of Labour, at Narsipatnam, dated 20th January, 2012 and pass IA NO: 2 OF 2012(CMAMP 947 OF 2012 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of operation of the decree and order in WC.No. 4 of 2010 on the file of the court of the Commissioner and Assistant Commissioner of Labour, at Narsipatnam dt. 20/01/2012 pending disposal of the main CMA Counsel for the Appellant: 1. NARESH BYRAPANENI Counsel for the Respondent(S): 1. M V HANUMANTHA RAO The Court made the following: 3 JS,J CMA No.125/2014 JUDGMENT: The Insurance Company filed the present appeal aggrieved by the order dated 20.01.2012 passed in W.C.No.04 of 2010 on the file of the Commissioner For Workmen‘s Compensation and Assistant Commissioner of Labour, Narsipatnam, whereby the Commissioner awarded an amount of Rs.3,83,263/- towards compensation to the claimant as against the claim of Rs.4,00,000/- for the death of the deceased by name Egala Srirama Murthy. 2) For convenience, both the parties in the appeal will be referred to as they are arrayed in the claim application. 3) The brief averments of the claim petition are as follows: On 09.09.2009, on standing instructions of 1st opposite party to the driver of the vehicle i.e. Tractor bearing No.AP31 AD 9305, the deceased along with other workers went to load the soil at Krishnapuram tank. The driver of said vehicle called the deceased to accompany with him in order to bring lunch from the Hotel for workers. On which, the deceased accompanied with the driver of vehicle on the said tractor and while returning to the work spot, the driver of vehicle, drove the vehicle in a rash and negligent manner and on applying the sudden breaks, the deceased, who sat on the mudguard of the Tractor, fell on the road. As a result, the left side back wheel of the Tractor was run over the waist of deceased and thereby, he sustained grievous injury on his waist. Later, the deceased was shifted to Area Hospital, Narsipatnam for treatment. As per the advice of Doctor, while the deceased was shifting to K.G.H., Visakhapatnam, for better treatment, the deceased was succumbed to injuries at Makavarapalem. The accident occurred due to rash and negligent driving of the tractor bearing No.AP31 AD 9305, by its driver and a case in crime 4 JS,J CMA No.125/2014 No.148 of 2009 of Narsipatnam Town Police Station was registered under Section 304-A of IPC. 4) Respondent No.1 is owner of tractor bearing No.AP31 AD 9305, respondent No.2 is insurer of the tractor bearing No.AP31 AD 9305, as such they are jointly and severally liable to pay compensation of Rs.4,00,000/- to the applicant for the death of her son. 5) The 1st opposite party filed counter, in which he accepted the employment and wages of the deceased and the occurrence of the accident during the course of employment under 1st opposite party. The 2nd opposite party filed counter, in which, the insurance company denied all the material allegations of the application; the employer and employee relationship of the deceased with the 1st opposite party and demanded strict proof of the same; the age and wages of the deceased worker and also denied the cause of death of the deceased worker. 6) Based on the above pleadings, the Commissioner framed the following issues for trial: (1) Whether the deceased is a workman under the provisions of W.C. Act and there exists employee-employer relation and death aroused out of and in the course of employment? (2) What is the age & Wage of the deceased at the time of the accident? (3) Whether the applicant is entitled for any amount of compensation? If so what amount of compensation the applicant is entitled and who are liable to pay compensation? 7) During the course of enquiry, on behalf of the claimant, A.Ws.1 & 2 were examined and Exs.A.1 to A.6 were marked. On behalf of the 5 JS,J CMA No.125/2014 respondents, R.Ws.1 & 2 were examined and Exs.B.1 and B.2 and Ex.X.1 were marked. 8) After considering the arguments advanced by both the counsel and examining both the oral and documentary evidence on record, Commissioner awarded compensation as aforesaid. Aggrieved by the award, this appeal was filed by the Insurance company. 9) Learned counsel for the appellant–insurance company contended that the Commissioner failed to consider the evidence of RWs.1 and 2, as well as the contents of Exs.B.2 and X.1, which clearly demonstrate that the driver of the tractor bearing No. AP31 AD 9305 did not possess a valid and effective driving licence to operate the offending vehicle. It was further argued that the Commissioner overlooked Ex. B.1, which shows that the appellant had not paid any premium to cover the risk of the deceased, and that the premium paid was only to cover the risk of one workman—namely, the driver of the tractor. Accordingly, learned counsel requested that the impugned order is liable to be set aside. 10) Having heard the submissions made by the learned counsel for the appellant and on perusal of the material available on record, the point that arises for consideration is as follows: Whether the appellant – insurance company is liable to pay compensation of Rs.3,83,263/- as awarded by the Tribunal? 11) I have carefully analyzed the entire evidence on record. A.W.1 – mother of the deceased reiterated the contentions urged in the petition, however she is not an eyewitness to the accident. A.W.2 – who is working as coolie under 1st opposite party deposed that when he was loading the soil in the trailer along with other workers at Krishnapuram tank at about 6 JS,J CMA No.125/2014 2.30 pm, he came to know that the deceased died in an accident due to rash and negligent driving of the driver of tractor belongs to 1st opposite party. Further, Ex.A.1 – copy of F.I.R. and Ex.A.6 – copy of charge sheet discloses that after investigation, the police filed charge sheet against the driver of the vehicle. 12) Admittedly, there is no evidence on record to show that the deceased was engaged as a coolie by the owner of the tractor to unload soil at the time of the accident. No special premium was collected to cover the risk of a coolie. Furthermore, the seating capacity of the tractor is only one, and since the deceased was travelling in the tractor by sitting beside the driver, the insurance company cannot be held liable to pay compensation. 13) At this juncture, it is pertinent to quote Rule 252 of the Andhra Pradesh Motor Vehicles Rules, 1989, in this case, which reads as follows: “252. Carrying of persons in goods vehicle carriage:- (1) 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 nukuneters measure 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 persons 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 vehicles, 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. 7 JS,J CMA No.125/2014 (3) No person other than a person connected to the conveyance of goods shall travel in a goods vehicle. (4) Notwithstanding the provision 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 vehicles; (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.‖ 14) According to the above Rule, persons shall not be carried more than the prescribed capacity and it is not just violation of terms of policy, but, if a person is allowed to travel in a goods vehicle beyond the permitted seating capacity, the insurance company is not at all liable and therefore, it cannot be fastened with liability of paying the compensation to the claimants and recovering the same from the owner as was held by this High Court in case of Vachala Vs. V.R. Kumar1, wherein the decision at paragraphs No.4 and 5 reads as follows: ―4. Ex. B.2, true extract of the ‗B‘ register relating to the offending vehicle, shows that it originally was a open (hackney) carriage (Auto Rickshaw Cab) having seating capacity of ‗Four in all and by the proceedings in R. No. 7713/A5/93 dated 20.4.1993, the following alterations were made with effect from 20.4.1993. ‗(1) Class of Vehicle - L.M.V. goods vehicle; (2) Seating Capacity - one; 1 2004 (5) ALD 30 8 JS,J CMA No.125/2014 (3) D.L.W : 330 Kgs; and (4) R.L.W. - F.A.W.-300 Kgs and R.A.W-600 Kgs.‘ Therefore, it is clear that the seating capacity of the offending vehicle is only one i.e., the driver alone can travel in the vehicle. The offending vehicle being a light motor goods vehicle with seating capacity for one i.e., driver, question of anybody else either it be the owner of the goods, or his authorized representative, being allowed to travel therein cannot arise in view of Rule 252(5) A.P. Motor Vehicles Rules, 1989, made in pursuance of the power given under the Act. When carrying of passengers in the offending vehicle is not allowed by the Act, question of insurer covering the risk of owner of the goods or an authorized representative of the owner of the goods travelling along with the goods in the offending vehicle does not arise. 5. The next contention of the learned counsel for the appellant that carrying of passenger in the offending vehicle at best amounts to the driver committing a breach of the terms and conditions of the policy and, so, the insurer has to pay the compensation to the appellants and recover the amount so paid from the owner, cannot be accepted because carrying of passengers in the offending vehicle is contrary to the provisions of the Act and the Rules made thereunder and since the policy issued by second respondent does not even cover the risk of passenger in the offending vehicle. If the insurer covers the risk of some persons and lays down some conditions for its being made liable in respect of those persons, and if the insured violates some of those conditions, then there may be some force in the contention of the learned counsel for the appellants. When the insurer did not undertake to cover the risk of passengers in the offending vehicle, question of its being made liable in respect of the risk of such passenger does not arise.‖ 15) Learned counsel for the appellant – Insurance Company has brought to the notice of this Court that in a similar case-MACMA No.1794 of 2006, where the driver of the tractor drove the same in a rash and negligent manner and due to sudden jerk, the deceased therein, who was 9 JS,J CMA No.125/2014 sitting on the tractor fell down and the trailer ran over him resulting in grievous injuries and later, succumbed to the injuries at the Government Hospital, this Court directed the claimants to recover the compensation amount awarded by the Tribunal from the owner of the tractor, and requested this Court to pass similar order in this case also. 16) The operative portion of the order passed in MACMA No.1794 of 2006 is as follows: ―However, since the appellant deposited half of the amount of compensation awarded by the Tribunal and the claimants were permitted to withdraw the same, without furnishing any security, the appellant since not liable to pay any compensation as decided in the above case, it can recover the amount from the insured without filing any separate suit, but by filing proceedings in execution. The respondents/claimants are still entitled to recover the balance half of the compensation amount awarded by the Tribunal from the owner of the tractor.‖ 17) In the present case also, the deceased travelled in the offending vehicle by sitting on the mudguard of the tractor. Permitting the passenger to travel in a goods vehicle is a violation of terms of policy. By marking Ex.B.1 – copy of insurance policy, the appellant - insurance company established that the policy does not cover the risk of coolies, who travel on it. In the light of the above said decision of this High Court, it cannot be treated as mere violation of terms of policy and it shall be regarded as policy does not cover the risk of the deceased. Therefore, the Insurance Company is not liable to pay compensation to the claimant. 18) Since half of the amount was already deposited by the appellant – insurance company as per the interim order of stay passed by this Court in the appeal, the learned counsel for the appellant contended that the same amount may be permitted to be recovered from the owner of the insured vehicle. It was also submitted by him that the claimant may recover the 10 JS,J CMA No.125/2014 amount of compensation awarded by the Tribunal from the owner of the tractor and trailer irrespective of the liability against the insurer. 19) As a similar issue has already been decided by this Court vide order dated 17.07.2025 in M.A.C.M.A.No.1794 of 2006, the present appeal can be allowed under similar lines. 20) Accordingly, the Civil Miscellaneous Appeal is allowed. The appellant is permitted to recover the amount already deposited from the insured without filing any separate suit, but by filing execution proceedings. The respondent / claimant is still entitled to recover the balance half of the compensation amount awarded by the Tribunal from the owner of Tractor and Trailer bearing Nos.AP31 AD 9305 and AP31 Y 0840. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed. __________________________________ JUSTICE SUMATHI JAGADAM Dated: 13.11.2025 TVN 11 JS,J CMA No.125/2014 226 THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM CIVIL MISCELLANEOUS APPEAL NO: 125/2014 Dated: 13.11.2025 TVN