APHC010055192008 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] Thursday, the Thirty First day of July Two Thousand and Twenty Five Present The Honourable Ms. Justice B.S. Bhanumathi Motor Accident Civil Miscellaneous Appeal No: 1235 of 2008 Between: The New India Assurance Company Limited, Vijayawada. ...Appellant and Ilavarapu Ravi and another ...Respondents Counsel for the appellant: 1. A. Jayanthi Counsel for the respondents: 1. A. Rajendra Babu The Court made the following: 2 M.A.C.M.A.No.1235 of 2008 JUDGMENT: This appeal is filed under section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 09.01.2007 in M.V.O.P.No.1071 of 2003 on the file of the Motor Vehicles Accident Claims Tribunal-cum-IX Additional District Judge, Guntur awarding compensation of Rs.56,000/- with interest @ 7.5% from the date of the petition till the date of recovery and proportionate costs payable by both the respondents with joint and several liability, however liberty is given to the respondent No.2 to recover the amount deposited by the respondent No.2 from the respondent No.1 without filing any separate suit. 02. The case of the claimant is that on 23.07.2003, in the afternoon, while he along with others were travelling in a tractor and trailer bearing Nos.AP 27 U 7053 and 7054 after loading saplings of paddy for the purpose of unloading them at B.B.Gudem, the accident occurred due to rash and negligent driving of the driver when the vehicle turned turtle near Veleru Cross Road and that as he was treated in Government Hospital, Gannavaram for providing first aid and later in the Government General Hospital, Vijayawada; that the petitioner was an agricultural coolie and earning Rs.75/- per day before the accident and that he spent Rs.15,000/- for medical expenses. 03. The respondent No.1 / owner of the tractor trailer filed counter denying the liability and also stating that the vehicles were insured with the respondent No.2. 04. The respondent No.2 / insurance company filed written statement denying the averments in the petition and further stating 3 M.A.C.M.A.No.1235 of 2008 that both the tractor, trailer were insured by it and the policy was in force as on the date of the accident, however placed the claimant to prove that there is valid permit and driving license to the driver. It is further stated that the amount claimed is excessive. 05. On behalf of the claimant, he got himself examined as P.W.1 and Dr. V.Somanatham was examined as P.W.2 and following exhibits are marked on behalf of the claimant: Exhibits Date Document Ex.A1 23.07.2003 Certified copy of F.I.R. Ex.A2 - Certified copy of charge sheet. Ex.A3 23.07.2003 Information to police. Ex.A4 23.07.2003 M.V.I. report. Ex.A5 23.07.2003 O.P. chit issued by U.G.H., Vijayawada. Ex.A6 - Medical bills for Rs.1,174/-. Ex.A7 - X-ray films (3 in number). Ex.X1 23.07.2003 Case sheet. Ex.X2 23.07.2006 X-ray. Ex.X3 23.07.2006 Estimation notes of patient. 06. On behalf of the respondents, R.Adi Seshu was examined as R.W.1, K.Nagendra Babu was examined as R.W.2 and the following documents were filed on behalf of them: Exhibits Date Document Ex.B1 05.06.2003 Policy. Ex.B2 05.02.2004 Office copy of notice. Ex.B3 27.10.2004 Extract of driving license particulars of driver. Ex.B4 25.11.2006 Permit. 4 M.A.C.M.A.No.1235 of 2008 Ex.X4 13.02.2006 B-register of tractor. Ex.X5 13.02.2006 B-register of trailer. Ex.X6 13.02.2006 Authorization letter. Ex.X7 13.02.2006 Carriage permit. 07. Holding that the accident was caused due to the rash and negligent driving of the driver of the subject vehicle, the Tribunal assessed the quantum of compensation payable to the claimant at Rs.56,000/- and fastened the liability on both the respondents with joint and several liability by observing that the passengers, including the claimant, were travelling as coolies for loading and unloading of the saplings, by rejecting the contention of insurance company that there is violation of terms of policy by carrying the gratuitous passengers in a goods vehicle. 08. Aggrieved by the award and decree, this appeal was filed by the insurance company challenging both liability and the quantum of compensation awarded. 09. Sri T.Ravi Teja, learned counsel representing the learned counsel for the appellant submitted that there is no proof that the claimant and others were engaged as coolies to load and unload and that the liability of the insurance company, if any to the loading and unloading coolies is limited to the points at loading and unloading but not during the travel in the vehicle. He further submitted that the seating capacity of the trailer is only one as can be seen from the Ex.X4, however permitting 25 passengers in the trailer is a violation of the terms of policy and Rule 252 of the A.P. Motor Vehicle Rules, 1989 as per which no person shall be carried in a goods vehicle beyond the number of the seating capacity or upon the goods or 5 M.A.C.M.A.No.1235 of 2008 otherwise in such a manner that said person is in danger of falling from the vehicle and without the permission of regional transport authority or the state transport authority, large number of persons cannot be carried in a goods vehicle. Therefore, he contended that carrying a large number of persons of about 25 as per the charge sheet (Ex.A2) in the present case is a clear violation of the Rules and the insurance company cannot be made jointly and severally liable or given liberty to first pay and then recover the amount from the insured. He referred to the decision of this High Court in Vachala and others Vs. V.R.Kumar and another1, wherein a claim was raised by the dependents of a deceased person who was travelling in a converted goods vehicle having seating capacity of one which is meant for a driver and this High Court held that the insurance company is not liable to pay compensation. 10. The learned counsel for the respondent No.1 / claimant contended that the seating capacity of trailer is „one' and the claimant is also „one' and therefore the insurance company cannot disown its liability having received the premium of Rs.510/- without indicating bifurcation of the premium collected under any different heads. He distinguished the application of the case cited by the learned counsel for the appellant to the present case on the ground that though seating capacity is „one' in both cases, in the said case, one seat is meant for a driver, whereas in the present case „one' seat in the trailer is not for the usage of driver. 11. The respondent No.2 / owner remained ex parte. 12. The admitted facts are that the trailer was also insured and its seating capacity is shown as one as per Ex.X5 (B-register of trailer) 1 2004 (5) ALD 30 6 M.A.C.M.A.No.1235 of 2008 and the claimant, along with about 25 others as per the charge sheet, was travelling in the trailer along with the paddy saplings and the claimant is a coolie. The Tribunal held at one point that the persons travelling in the tractor are unauthorized passengers and therefore, the respondent No.1 violated conditions of policy and therefore, the respondent No.2 is not liable to pay any compensation, however in the result part of the judgment both the respondents were made jointly and severally liable to pay the amount of compensation and further the respondent No.2 is held to be entitled to recover the same from the respondent No.1 without filing any separate suit. Obviously, there is inconsistency. 13. If a policy of insurance covers risk, yet if there is violation of any term of policy, insurance company has to prove not only violation of term of policy, but also that the violation of term of policy led to causing the accident as per decision of Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh2, wherein at para No.110 (iv to vi) reads as follows: “…(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be 2 (2004) 3 SCC 297 7 M.A.C.M.A.No.1235 of 2008 allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act…” 14. In such a case, if the accident is shown to be caused due to such violation, insurance company is not liable to pay compensation, however, it may be directed to first pay the amount to the claimant and then recover the same from the insured. But, where the terms of insurance does not cover risk, the insurance company cannot be made liable to pay compensation. 15. In the present case, the policy covers the owner or agent of the owner of the goods. Since the seating capacity of the trailer is shown as one, it permits carrying one person. Since the heads under which the premium amount was collected is not indicated and carrying coolie is not excluded, in the peculiar facts and circumstances in this case, the liability of the insurance company to cover the risk of one passenger cannot be excluded, even if there are more than one travelling in the vehicle, by limiting liability to one person which is permitted. Therefore, liability of the insurance company cannot be challenged by the insurance company. The liberty given to the insurance company to recover the amount paid to the claimant from the insured, since it is not challenged by the insured, this Court is not inclined to go into that aspect. The case cited by the learned counsel representing the appellant cannot be applied to the present case as distinguished by the learned counsel for the respondent No.1. 16. Insofar as the quantum of compensation is concerned as the Tribunal rightly assessed, it does not require any interference. 8 M.A.C.M.A.No.1235 of 2008 17. Accordingly, with the above observations, the Motor Accident Civil Miscellaneous Appeal is dismissed. 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. ________________________ JUSTICE B.S. BHANUMATHI Date: 31.07.2025 GRL / NSM 9 M.A.C.M.A.No.1235 of 2008 68 The Honourable Ms. Justice B.S.Bhanumathi Motor Accident Civil Miscellaneous Appeal No: 1235 of 2008 Date: 31.07.2025 GRL / NSM