APHC010505642004 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3524] FRIDAY,THE TWENTY SEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM CIVIL MISCELLANEOUS APPEAL NO: 2217/2004 Between: 1. D.M. THE ORIENTAL INSURANCE CO LTD KAKIN, KAKINADA DIVISIONAL MANAGER THE DIVISIONAL MANAGER, M/S.ORIETNAL INSURANCE COMPNAY LTD., KAKINADA, ...APPELLANT AND 1. KATTU CHELLAYAMMA AND 6 ORS, W/O.LATE SANYASI RAO HOUSE-WIFE R/O.BALUSULAPETA, SAMALKOTA (M). 2. KATTU NOOKARAJU, S/O.LATE SANYASI RAO R/O.BALUSULAPETA, SAMALKOTA (M). 3. MR UDATHA SATYANARAYANA, S/O.SURYANARAYANA DRIVER OF LORRY NO.ABP 7529 C/O.AKULA PEDA KAPU, REPURU, KAKINADA, 4. MR AKULA PEDA KAPU, S/O.CHINA VENKATA RAO OWNER OF LORRY NO.ABP 7529 R/O.REPURU, KAKINADA, EAST GODAVARI DISTRICT. 5. MR GEDDA MAHESH, S/O.RAMA RAO DRIVER OF LORRY NO.AP 5 T 6557 R/O.YELESWARAM, PRATHIPADU DMC., EAST GODAVARI DISTRICT. 6. MR D BALANAGIREDDY, S/O.CHELLAREDDI OWNER OF LORRY NO.AP 5 T 6557 R/O.D.NO.20-20-4, RAJAHMUNDRY, EAST 2 GODAVARI DISTRICT. 7. M/S NEW INDIA ASSURANCE COMPANY LTD, RAJAHMUNDRY DIVISIONAL MNAAGER THE DIVISIONAL MNAAGER, M/S.NEW INDIA ASSURANCE COMPANY LTD., RAJAHMUNDRY, ...RESPONDENT(S): Appeal Under Section_____against orders IA NO: 1 OF 2003(CMP 6014 OF 2003 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 38 days in filing the appeal against OP No.435/98 dated 5.10.02 on the file of the MACT-cum-III Addl.District Judge, Kakindada and pass such other order or orders. IA NO: 2 OF 2004(CMP 7584 OF 2004 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 exeuction of decree and judgement passed in OP No.435/98 dated 5.10.02 on the file of the MACt-cum-III Addl District Judge, Kakinada, pending disposal of the above appeal and pass such other order or orders. Counsel for the Appellant: 1. S A V RATNAM Counsel for the Respondent(S): 1. . 2. A JAYANTHI CIVIL MISCELLANEOUS APPEAL NO: 2060/2004 Between: 1. DI VMNGR.,ORIENTAL INSURANCE CO LTD, DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD. KAKINADA. ...APPELLANT AND 3 1. PITTA DANIEL 5 ORS, S/O GANGARAJU JATTU COOLY NEELAMMA CHERU BALUSULAPETA SAMALKOTA KDMC. 2. UDATHA SATYANARAYANA, S/O SURYANARAYANA DRIVER OF LORRY ABP 7529 C/O AKULA PEDA KAPU, REPURU KAKINADA, 3. AKULA PEDA KAPU, S/O CHINA VENKATARAO OWMER OF LORRY ABP 7529 AKULA PEDA KAPU, REPURU KAKINADA, 4. GEDDA MAHESH, S/O RAMARAO DRIVER OF LORRY AP 5 T 6557 YELESWARAM PRATHIPADU DMC 5. D BALANAGIREDDY, S/O CHELLAREDDI OWNER OF LORRY AP 5 T 6557 20-20-4, RAJAHMUNDRY. 6. M/S NEW INDIA INSURANCE CO LTD, DIVISIONAL MANAGER, M/S NEW INDIA INSURANCE CO. LTD. RAJAHMUNDRY. ...RESPONDENT(S): Appeal Under Section_____against orders IA NO: 1 OF 2003(CMP 6005 OF 2003 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 38 days in filing the appeal against OP.no.437/98 dated 5-10-02 on the file of the MACT-cum- III ADJ, Kakinada. IA NO: 1 OF 2004(CMP 7817 OF 2004 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 execution of decree and judgment passed in OP.no.437/98 dated 5-10-02 on the file of MACT-cum- III ADJ, Kakinada, pending disposal of the above appeal. Counsel for the Appellant: 1. S A V RATNAM Counsel for the Respondent(S): 1. . 2. A JAYANTHI 4 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM C.M.A.Nos.2217 and 2060 of 2004 COMMON JUDGMENT:(per Hon’ble Sri Justice Maheswara Rao Kuncheam) Heard Ms. S.A.V. Ratnam, learned counsel for the appellant/ Oriental Insurance Company Ltd. and Sri P. Vikas, learned counsel representing Smt. A. Jayanthi, learned counsel for the respondent, who entered appearance on behalf of New India Assurance Company. None appeared for the remaining respondents in either of the appeals. 2. C.M.A.No.2217 of 2004 and C.M.A.No.2060 of 2004 are preferred by the appellant/Oriental Insurance Company under Section 173 of Motor Vehicles Act, 1988 aggrieved by the awards and decrees passed in M.V.O.P.No.435 of 1998 and M.V.O.P.No.437 of 1998 dated 05.10.2002, respectively, by the learned III Addl. District Judge, Kakinada-cum-Motor Accidents Claims Tribunal, Kakinada (in short ‘the Tribunal’), wherein, liability has been fixed on appellant/Oriental Insurance Company, owner and driver jointly and severally while dismissing the claim petition against New India Insurance Company and its allies. 5 3. The parties hereinafter are referred to as they were arrayed before the Tribunal. 4. As the matter arises out of the same accident and in view of the common grounds raised in these appeals, they were taken up together. Brief case of the appellants/respondents before the Tribunal: 5. On the fateful day of 05.07.1996 at 4.00 p.m., the deceased namely, Kattu Vasantha Rao, who was aged about 23 years and the injured person namely, Pitta Daniel, aged about 25 years, while working as Jattu Coolies, boarded lorry bearing No. A.B.P.7529 (crime lorry) loaded with metal. The said lorry was driven by respondent No.1-Udatha Satyanarayana, proceeding from Madhavapatnam to V.K. Rayapuram. On 05.07.1996 at about 4.00 p.m. in between Madhavapatnam and V.K. Rayapuram, another lorry bearing No.A.P.5.T-6557, came in the opposite direction driven by the 3rd respondent at high speed in a rash and negligent manner and dashed the lorry bearing No.ABP 7529 resulting in the accident, which led to injuries and immediately, Kattu Vasantha Rao and Pitta Daniel were shifted to G.G. Hospital, Kakinada for medical treatment, while taking treatment at the said hospital, Kattu Vasantha Rao succumbed to death on 16.8.1996, consequent to the accident. Another person namely Pitta Daniel was suffered with grievous injuries. Consequent to the accident a criminal case in 6 Cr.No.113 of 1996 was registered under Sections 337, 338, 304-A of IPC by Samarlakota Police. 6. In M.V.O.P. No. 435 of 1998 filed by the mother and minor brother of the deceased K. Vasantha Rao, who was unmarried, it is stated that deceased used to work as Jattu coolie and earning more than Rs.3,500/- per month. Due to his accidental death, the livelihood of the family affects greatly. Hence, they sought for compensation of Rs.2,00,000/-. 7. Whereas, in M.V.O.P. No.437 of 1998 filed by the injured person namely, Pitta Daniel, who was also unmarried and used to work as Jattu Coolie by earning Rs.3,500/- per month and he was the sole breadwinner of his family. The accidental injuries led to 10% disability and caused deteriorating physical health and deep mental agony and due to the same, injured Pitta Daniel sought compensation of Rs.70,000/-. Brief case of the respondents: 8. The respondents who are common in both the cases took similar pleas in their respective counters. The 3rd respondent, who is the owner of the lorry bearing No.ABP 7529 filed his counter by resisting the assertions made in the claim petition inter alia, contenting that there was no negligence on the part of the 1st respondent, who drove the lorry 7 bearing No ABP 7529 and stated that the amount claimed by the petitioners was excessive. 9. The 5th respondent/Oriental Insurance company filed its counter inter alia denying the version of the claimants with regard to age, profession and also the manner of accident. It is the case of the 5th respondent that the accident has taken place due to negligent attitude of the driver of the vehicle bearing No. ABP 7529 and contended that the deceased and injured were not Jattu Coolies and they were unauthorized passengers only. Hence, it amounts to violation of insurance policy conditions and the very claim itself is liable to be thrown out. 10. Further, the 6th respondent / New India Assurance Company also filed its counter, denying the claim petition averments and also put the claimants on strict proof of the age, avocation and the manner of accident, etc. It is also contended that the accident had taken place due to rash and negligent driving of opposite vehicle bearing No.ABP 7529 only, but not by the driver of the lorry bearing No.AP 5T 6557, wherein the deceased and injured traveled as un-authorized passengers only. 11. Respondent Nos.1, 2 and 4 remained exparte before the Tribunal. 8 12. The Tribunal framed the following issues in both the petitions: I. Whether the accident had occurred due to rash and negligent driving by the driver of the lorry A.B.P. 7529 and the lorry A.P.5.T 6557? II. Whether the petitioner is entitled for compensation and if so, to what amount, and from which of the respondents? III. To what relief? 13. For the sake of comprehensive view, the appendix of oral and documentary evidence adduced before the Tribunal are extracted herewith in tabulated format: M.V.O.P.No.435 of 1998: Witnesses Examined for Petitioner: Sl. No. Name of the witness Examined as Role 1 Kattu Chellayamma PW-1 Mother of the deceased 2 Pitta Danial PW-2 Injured witness Documents marked on behalf of the petitioners: Sl.No. Document marked as & Date Description of the Document 1 Ex. A-1 Dt. 05.07.1996 Attested copy of F.I.R. Cr. No. 113/96 2 Ex. A-2 Dt. 05.07.1996 Copy of Postmortem Report 3 Ex. A-3 Dt. 05.07.1996 Copy of M.V. Report Witnesses Examined for the respondents: 1. P.S.S.Nagaraju R.W.1 Senior Assistant R5 company Documents marked on behalf of respondent: Sl.No. Date & document marked as Description of the Document 9 1. Ex.B.1 Copy of Insurance Policy issued by Oriental Insurance Company. M.V.O.P.No.437 of 1998: Witnesses Examined for Petitioner:- Sl. No. Name of the witness Examined as Role 1 Pitta Daniel PW-1 Injured Person 2 Dr.N.Appa Rao PW-2 Doctor Casualty Medical Officer, G.G.H., Kakinada 3 Dr. C.Hanumantha Rao PW-3 Professor of Orthopedics Documents marked on behalf of the petitioners: - Sl.No. Date & document marked as Description of the Document 1 Ex. A-1 Dt. 05.07.1996 Attested copy of F.I.R. Cr No. 113/96 2 Ex. A-2 Dt. 05.07.1996 Attested copy of wound certificate. 3 Ex. A-3 Dt. 05.07.1996 Attested copy of M.V.I. Report 4 X.1 Case Sheet with X-ray of P.W.1 Witnesses Examined for the respondent: - 1. P.S.S.Nagaraju R.W.1 Senior Assistant R5 company Documents marked on behalf of respondent: Sl.No. Date & document marked as Description of the Document 1. Ex.B.1 Copy of Insurance Policy issued by R5 to R2. 2. Ex.B.2 Investigator Report 10 Findings of Tribunal: M.V.O.P.No.435 of 1998: 14. In M.V.O.P. No.435 of 1998, the Tribunal, after examining the oral and documentary evidence on record, came to the clear conclusion that the accident occurred due to rash and negligent driving of the driver of the 1st respondent lorry bearing No ABP 7529, owned by the 2nd respondent insured with the 5th respondent / Oriental Insurance Company. The Tribunal, after considering the fact that the deceased was unmarried and had been contributing his income to his family i.e., mother & minor brother, assessed his income at Rs.12,000/- per annum and awarded a sum of Rs.1,56,000/- towards loss of income. In addition, Rs.20,000/- was granted towards loss of love and affection, and Rs.4,500/- towards hospital expenses. Thus, the total compensation awarded by the Tribunal was Rs.1,80,500/-, out of which, the Tribunal allotted Rs.1,50,000/- to the share of the 1st petitioner and Rs.30,500/- to the share of the 2nd petitioner. The Tribunal dismissed the claim petition against the respondents 3, 4 and 6 through its award and decree dated 15.10.2002 in M.V.O.P.No.435 of 1998. M.V.O.P.No.437 of 1998: 15. In M.V.O.P. No.437 of 1998, the Tribunal, after examining all the witnesses and exhibits, arrived at its findings that the accident had occurred due to rash and negligent driving of the driver of the 1st 11 respondent lorry bearing A.B.P.7529. The Tribunal by taking the petitioner’s age as 25 years and also duly taking into consideration the nature of injuries sustained by the victim/injured, who sustained 10% disabilities, by adopting the multiplier as ‘17’, and also taking Coolie income per annum as Rs.14,400/- granted Rs.24,480/- and added Rs.5,500/- towards medical expenses, extract nourishment, etc., along with past earning of Rs.7,200/-, awarded total compensation of Rs.44,680/- to the injured. Arguments in the appeal: 16. Smt. S.A.V.Ratnam, learned counsel appeared for the appellants/Insurance Company in both the appeals. Though she raised multiple grounds in the grounds of Appeal, during the course of hearing, she raised a contentious ground that the deceased and injured were travelling as unauthorized passengers in the lorry meant for goods as it directly amounts to violation of Ex.B.1 (Insurance Policy). Hence, the claimants are not entitled to any compensation in the lis. 17. Learned counsel for the 7th respondent/New India Assurance Company submits that the Tribunal, after arriving un-equivocal findings in the lis, rightly dismissed the claim against the New India Assurance Company and the respondents 3 and 4. During the course of arguments, learned counsel further brought to the notice of this Court in 12 the instant appeals that the case against D.Bala Nagi Reddy, who was the owner/insured with the said New India Assurance Company was dismissed for default on 19.11.2015. Analysis: 18. After going through the docket proceedings in C.M.A.No.2217 of 2004, the appeal was dismissed for default vide orders dated 19.11.2015 in respect of the 6th respondent. None appeared for other respondents in spite of service of notice, except New India Assurance Company. 19. Whereas, in C.M.A.No.2060 of 2004, the appeal was dismissed for default vide orders dated 19.11.2015 in respect of the 5th respondent, except pertaining to New India Assurance Company as stated supra. None appeared for other respondents in spite of service of notice, except New India Assurance Company. 20. We have considered the submissions advanced by the respective counsels and also gone through the entire material in both the appeals meticulously. 21. Keeping in view of the core issue urged by the appellant/Oriental Insurance Company in both the appeals that the deceased and injured 13 were travelling as unauthorized passengers in the goods lorry, the following seminal point arises for our adjudication in the instant lis: ‘Whether the awards and decrees dated 05.10.2002, under challenge in the petitions, warrants interference of this Court on the ground that the deceased and injured were travelling as Jattu Coolies as unauthorized passengers in the vehicle.?’ 22. It is noteworthy to mention that in spite of the specific plea urged by the appellant’s Insurance Company with regard to unauthorized passengers traveling in the vehicle, the same was not dealt with by the Tribunal. 23. Before venturing into comprehensive analysis, it is apt to note the evidence adduced by the respective parties before the Tribunal to reach logical conclusion in the lis. M.V.O.P No. 435 of 1998: 24. P.W.1 is the mother of the deceased (Kattu Vasantha Rao), who assertively deposed that her unmarried son was aged about 23 years and was doing Jattu coolie works, used to earn Rs.150/- per day and with that amount only she maintained herself and her other minor son's basic needs. P.W1 also stated that her husband died long ago. Hence, the entire family was maintained by his deceased son, who used to work as Jattu coolie. She further deposed that her son, who received injuries in the accident, was immediately shifted to G.G. Hospital, Kakinada, on 14 05.07.1996 for medical treatment. He died while he was in treatment on 16.08.1996 due to accidental injuries only. In the cross examination, her evidence was not distorted. In support of her case, Ex-A1 to Ex-A3 were marked. Additionally, Ex-X.1 was also marked. 25. P.W.2 had also travelled as Jattu Coolie along with the deceased (Kattu Vasantha Rao) on the date of the accident, in the lorry bearing No. ABP 7529 owned by the 2nd respondent(Akula Pedda Kapu). P.W.2 also clearly deposed about his avocation as Jattu Coolie and he traveled along with the deceased on the date of the accident. He further deposed that, consequent to the rash and negligent driving by the driver of the lorry bearing No.AP 5T 6557, which was coming in opposite direction to their lorry, led to accident. On sustaining grievous injuries, he was shifted to G.G.Hospital, Kakinada, for his treatment. Though he was cross-examined by both Insurance companies, they have not elicited any cogent evidence to discard the case of P.W.2 too. 26. So far as single witness examined i.e., R.W.1 on behalf of the appellant/Oriental Insurance Company is concerned, he deposed that he worked as Senior Assistant in the Oriental Insurance Company and filed Ex.B.1 copy of Insurance Policy for vehicle bearing No.ABP 7529 issued by the Insurance company. 15 M.V.O.P No. 437 of 1998: 27. P.W.1 namely Pitta Daniel, aged about 25 years, was injured and he deposed that he was doing Jattu coolie works earning Rs120/- to Rs.150/- per day and contended that he was the sole breadwinner for his family. When the accident took place, he had sustained an injury on his head and fractures to his left upper arm and left thigh, and that he was taken to G.G.Hospital, Kakinada, where he was treated as an inpatient for 35 days and after his operation, steel rods were inserted on his left thigh, which are yet to be removed. Ex.A.1 to Ex.A.3 were marked on his behalf. 28. In the evidence of P.W.2, who is Medical Officer, stated that he found the following injuries: (1) scalp deep bleeding laceration on the left parietal region, (2) deformity over the left upper arm, and (3) deformity over the left thigh. X-ray examination revealed fracture of the frontal bone of the skull, fracture of the left humerus, and fracture of the left femur, and he opined that the injuries were grievous in nature. Injured admitted in the G.G.Hospital, Kakinada on 05.07.1996 and discharged on 08.08.1996. Ex.X.1 is the case sheet along with X-ray reports got marked. 29. R.W.1 is the Senior Assistant working in the Oriental Insurance Company, who was examined and stated that they appointed an 16 investigator to cause an enquiry about the accident and for other details. He also filed Ex.B1 copy of Insurance Policy for vehicle ABP 7529 issued by the Oriental Insurance company and further deposed that the claim amount was excessive. 30. As per the investigation report i.e., Ex.B.2, the injured was travelling in the vehicle along with the goods as Jattu Coolie and getting Rs.60-70 per day in average. It is also mentioned in Ex.B.2 that the lorry bearing No.ABP 7529 is insured with Oriental Insurance Company, Kakinada, valid from 04.09.1996 to 03.09.1996 and also having valid driving license and permit upto 14.07.1998. Consideration of the Court: 31. In this backdrop of above discussed facts as well as evidence adduced and produced by the respective parties before the Tribunal, it is evident that P.W.1 (mother of the deceased), P.W.2 (injured who was the claimant in M.V.O.P.No.437 of 1998) in M.V.O.P.No.435 of 1998 and P.W.1 injured in M.V.O.P No. 437 of 1998, who sustained injuries in the very same accident, coupled with clear recitals in Ex.A1 (copy of FIR in Cr.No.113 of 1996 of Samarlakota Police Station) goes to show that deceased along with injured boarded the lorry bearing No.ABP 7529 as Jattu Coolies for loading and unloading of metal. When their travelling lorry bearing No.ABP 7529 crossed V.K.Rayavaram, another lorry 17 bearing No.AP 5T 6557 came in opposite direction in a rash and negligent manner, dashed their lorry, which leads to accident on 05.07.1996 at 4.00 p.m. Consequently, Jattu coolies were injured and shifted to G.G.Hospital, Kakinada for medical treatment on 05.07.1996 itself, where P.W.1’s son (K.Vasantha Rao) died while taking treatment on 16.08.1996 at G.G.Hospital, Kakinada and another person namely Pitta Daniel sustained grievous injuries, which was confirmed by the Medical Professor who treated them. Hence, it reveals that the deceased and injured were travelling as Jattu Coolies on the lorry bearing No.ABP 7529 for loading and unloading the metal, at the time of accident. 32. It is also apt to go through the relevant recitals in Insurance policy (Ex.B.1) issued by the appellant / Oriental Insurance company. Ex.B.1 reveals that indisputably, insurance policy for vehicle bearing No.ABP7529 commenced from 04.04.1995 10.30 am to midnight of 03.09.1996 and the vehicle is insured by Sri Akula Pedda Kapu, who is the owner of the vehicle bearing No.ABP7529. The relevant portion of the same is extracted hereunder: Premium Computation Basic Rs.1245.00 Add. Passenger Cover IMT 12 D & C Rs.30.00 Less: For Carriage of own goods Coolies Rs.75.00 TPPD Rs.75.00 18 Less: Discount in lieu of agency commission ST Rs.71.00 Net Premium Rs.1496.00 Effective date of commencement of insurance for the purpose of the Act from 10.30 a.m. on (date) 04.09.1995 to midnight of 03.09.96. 33. A close reading of the above recitals in Ex.B1 policy, goes to show that appellant Insurance Company collected basic amount Rs.1,245/-; D & C amount Rs.30/-; coolies amount Rs.75/-; TPPD amount Rs.75/-; S.T. amount Rs.71/- & Net Premium amount Rs.1496/-, which discloses that the appellant Insurance Company collected passenger IMT 12 D & C as well as for carriage of coolies of Rs.75/- and TPPD of Rs.75/-. 34. Thus, the overall conspectus of facts and circumstances and also evidence as detailed supra in both cases, crystalizes that deceased (K. Vasantha Rao) and injured (Pitta Daniel) while travelling as Jattu Coolies, met with an accident and one of them died and another has survived with grievous injuries. Once the insurance company collected requisite amounts for certain categories i.e., coolies, etc., irrefutably, the accident that took place on 05.07.1996 covers the risk of coolies travelling on the said vehicle and the insurance company would abide by its own specific stipulations in Ex.B1, since the policy was undeniably in force. 35. In fact, R.W.1, working as Senior Assistant in Oriental Insurance Company was examined on behalf of the appellant Insurance company. 19 He stated that the petitioner in M.V.O.P.No.437 of 1998 appointed an investigator, who submitted a report i.e., Ex.B2, and according to the said investigation, the injured was travelling as Jattu Coolie in the vehicle bearing No.ABP 7529. Since the deceased and injured were travelling as Jattu Coolies, as such, the case projected by the appellant Insurance company is not well founded and does not stand before the test of judicial scrutiny. 36. At this stage, it is apposite to mention the nature of work of the deceased and injured i.e., Coolie. A ‘Coolie’ is a single manual worker, generally engaged in casual or contractual labour involving the loading and unloading of goods. A coolie is also known as porter, manual labourer or daily wage worker in English. The word ‘Jattu’ in many south Indian contexts refers to group or team. In the absence of any authentic definition mandated by the statutory realm, combining the words ‘Jattu’ and ‘Coolie’, denotes ‘Jattu Coolie’, who work in groups or gangs (Jattu or Mutta) to lift, load and unload goods. 37. It is also relevant to state that an unauthorized passenger means a person who travels in a motor vehicle otherwise than in accordance with the purpose, permit, or seating capacity prescribed under the Motor Vehicles Act, 1988. The main theme of the ‘Act’ highlights the need for disciplined use of vehicles and adherence to statutory norms, while also 20 guiding courts and tribunals to adopt a balanced approach that upholds road safety without defeating the beneficial object of compensating accident victims. 38. Unauthorized passenger has always consistently been a point of consideration in the Hon’ble Divisional Bench of Allahabad High Court in New India Assurance Company Ltd. v. Smt. Prabhawati Devi and Ors.1 has stated a distinctive view on gratuitous passengers in Motor vehicle accidents as held under: 3. “...Meaning of “gratuitous passenger” is not available in the Motor Vehicles Act, 1988. As per Black's Law Dictionary, Sixth Edition, in a motor vehicle law, a person riding at invitation of owner or authorised agent without payment of a consideration or fare is a “gratuitous passenger”. “Gratuitous passenger” is comparable with gratuitous guest. Therefore, we have to go by the meaning of “guest”. A “guest” in an automobile is one who takes ride in automobile driven by another person, merely for his own pleasure or on his own business, and without making any return or conferring any benefit on automobile driver. “Guest” is used to denote one whom owner or possessor of vehicle invites or permits to ride with him as gratuity, without any financial return except such slight benefits as are customarily extended as part of ordinary courtesies of road.” 39. In Mahakali Sujatha v. Future Generali India Life Insurance Co. Ltd.2, the Apex Court, while appreciating the burden of proof pertaining to the insurance contract in its vivid terms, expressed its opinion in para No.61 of the judgment, which is extracted hereunder: “61. Section 103 of the Evidence Act, 1872 states that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided 1 2008 SCC OnLine All 914 2 (2024) 8 SCC 712 21 by any law that the proof of that fact shall lie on any particular person. This section enlarges the scope of the general rule in Section 101 that the burden of proof lies on the person who asserts the affirmative of the issue. Further, Section 104 of the said Act states that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. The import of this section is that the person who is legally entitled to give evidence has the burden to render such evidence. In other words, it is incumbent on each party to discharge the burden of proof, which restsupon him. In the context of insurance contracts, the burden is on the insurer to prove the allegation of non-disclosure of a material fact and that the non-disclosure was fraudulent. Thus, the burden of proving the fact, which excludes the liability of the insurer to pay compensation, lies on the insurer alone and no one else.” 40. In the case of K. Nagendra v. New India Insurance Co. Ltd.3, it is stated about the liability of the insurer during an accident, as held under: “...9. The purpose of an insurance policy in the present context is to shield the owner/operator from direct liability when such an unforeseen/unfortunate incident takes place. To deny the victim/dependents of the victim compensation simply because the accident took place outside the bounds of the permit and, therefore, is outside the purview of the insurance policy, would be offensive to the sense of justice, for the accident itself is for no fault of his. Then, the Insurance Company most certainly ought to pay.” “...10. At the same time though, when an Insurance Company takes on a policy and accepts payments of premium in pursuance thereto, it agrees to do so within certain bounds. The contract lays down the four corners within which such an insurance policy would operate. If that is the case, to expect the insurer to pay compensation to a third party, which is clearly outside the bounds of the said agreement would be unfair. Balancing the need for payment of compensation to the victim vis-à-vis the interests of the insurer, the order of the High Court applying the pay and recover principle, in our considered view, is entirely justified and requires no interference.” 3 2025 SCC OnLine SC 2297 22 41. Based on the overall evidence on record, we are of the view that the deceased and injured, being Jattu Coolies, were travelling together as group in the lorry bearing No.A.B.P.7529 and their presence in the said vehicle directly connects to the nature of their capacity as ‘Jattu Coolie’. Conclusion: 42. For the foregoing conclusion arrived at by this Court and in view of the above legal position, we find no justifiable reason to interfere with the awards and decrees passed in both the petitions by the Tribunal. 43. In the result, the C.M.A.No.2217 of 2004 is dismissed and award passed by the Tribunal is hereby confirmed. The appellant/Oriental Insurance Company, respondent Nos.3 and 4/Uday Satyanarayana and Akula Peda Kapu shall jointly and severally pay the awarded amount along with interest @ 9% p.a., within a period of two (2) months, from the date of receipt of a copy of this judgment, if not already deposited. In view of the efflux of time, respondent No.2 attained majority, both respondent Nos.1 & 2 are entitled to withdraw the entire amount, without furnishing any security. 44. In the result, C.M.A.No.2060 of 2004 is dismissed and award passed by the Tribunal is hereby confirmed. The appellant/Oriental 23 Insurance Company, respondent Nos.2 and 3/Uday Satyanarayana and Akula Peda Kapu shall jointly and severally pay the awarded amount along with interest @ 9% p.m., within a period of two (2) months, from the date of receipt of a copy of this judgment, if not already deposited. On such deposit, respondent No.1 is entitled to withdraw the entire amount, without furnishing any security. There shall be no order as to costs. As a sequel, all pending applications shall stand closed. ___________________ RAVI NATH TILHARI, J _____________________________ MAHESWARA RAO KUNCHEAM, J GVK 24 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM C.M.A. Nos.2217 and 2060 of 2004 Dt. 27.02.2026 GVK