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New India Assurance Co. Ltd. and ors. Vs. Kothapalli Venkateswara Rao - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 978 of 1976
Judge
Reported inAIR1985AP69
ActsMotor Vehicles Act, 1939 - Sections 110A; Indian Penal Code (IPC), 1860 - Sections 30; Evidence Act, 1872 - Sections 3
AppellantNew India Assurance Co. Ltd. and ors.
RespondentKothapalli Venkateswara Rao
Appellant AdvocateS.V.R.S. Somayajulu, Adv.
Respondent AdvocateN. Subba Reddy, Adv.
Excerpt:
.....order of sub court which passed decree in favour of respondent - vehicle met with an accident and driver of vehicle died - respondent made a claim along with widow of driver against appellant - claim was granted by sub court - appellant claimed that driver was not acting within course of his duty because he made some passenger to sit inside vehicle which was not allowed as per owner instructions - claim was not made by passengers but by widow of driver and owner of vehicle - held, decree was rightly passed by sub court. - - subba reddy, learned counsel for the plaintiff-respondent, submitted to the contra that the trial judge had totally misappreciated the positive evidence and was clearly wrong in finding that either saibaba or dws. 1 to 3 and feel satisfied that they were in fact..........he had infact incurred an expense of rs.20,877-37p. a claim meanwhile made by the widow of the driver venkateswara rao under the workmen's compensation act was ultimately allowed by this court by its order ex.a-22 dt. 27-11-1974 made in a.a.o. no.15/75 directing the plaintiff to pay rs.8,000/- with proportionate costs of rs.218.90 p. the plaintiff, by an amendment, claimed a further sum of rs.8,500/-. the trial judge decreed the full amount of rs.14,862-11p. towards cost of repairs and rs.8,218-90p. towards the amount which the plaintiff was directed to pay to the widow of venkateswara rao. there is now no dispute before us regarding the correctness of the amount determined as payable to the plaintiff under those two separate heads.2. the major submission made by mr. somayajulu,.....
Judgment:

Ramachandra Raju, J.

1. This is an insurer's (defendant's) appeal and arises out of a claim for Rs.23,362-11 p. made by the respondent (plaintiff in O.S.No. 276/71 on the file of the Sub Court, Vijayawada) but decree for the substantial amount of Rs. 23,081-01p. against the insurer with proportionate costs and subsequent interest. The plaintiff is the owner of a public carrier lorry bearing ADB 2367, Benz make of 1969. The vehicle was insured with the defendants under the comprehensive policy Ex.A-1 dt .3-12-1969 including coverage for claims under the Workmen's Compensation Act. It was involved in an accident at Kethapalli village at about 2 P.M. on 4-10-1970 while carrying some aluminium blocks from Hyderabad to Itchapuram. As a result of the accident, the vehicle fell down by the side of culvert resulting in heavy damage to the vehicle and the death of Venkateswara Rao, the driver of the lorry. One Saibaba, Radhakrishna Murthy (DW-1), Krishna Murthy (DW-2) and another P. Krishna Murthy (DW-3), all residents of Basavapatna in Karnataka State were being carried as passengers in the lorry at the time it became involved in the accident. They were, however, in no manner connected with the goods which the lorry was transporting at the time. Saibaba died as a result of the injuries suffered by him in the accident. Dws. 1 to 3 received some injuries. The claim for compensation was made in the suit ultimately under two main heads. Initially the claim was made only for Rs.14,862-11p. towards costs of repairs though, according to the plaintiff, he had infact incurred an expense of Rs.20,877-37p. A claim meanwhile made by the widow of the driver Venkateswara Rao under the Workmen's Compensation Act was ultimately allowed by this Court by its order Ex.A-22 dt. 27-11-1974 made in A.A.O. No.15/75 directing the plaintiff to pay Rs.8,000/- with proportionate costs of Rs.218.90 p. The plaintiff, by an amendment, claimed a further sum of Rs.8,500/-. The trial Judge decreed the full amount of Rs.14,862-11p. towards cost of repairs and Rs.8,218-90p. towards the amount which the plaintiff was directed to pay to the widow of Venkateswara Rao. There is now no dispute before us regarding the correctness of the amount determined as payable to the plaintiff under those two separate heads.

2. The major submission made by Mr. Somayajulu, learner counsel for the appellant-insurer, however, runs on the following lines. The liability of the insurer is a matter of contract as per the terms and conditions in Ex.-A-1. Under the limitations as to use, the policy does not cover 'use for the conveyance of passengers for hire or reward.' The trial Judge in fact found that Saibaba and DWs. 1 to 3 were being conveyed as passengers for hire or reward. Conveyance of passengers for hire or reward in a public carrier is also prohibited by law. There was, therefore, a contravention of an essential term and condition of the policy as also of the law which absolves the insurer from all liability.

3. Mr. Subba Reddy, learned counsel for the plaintiff-respondent, submitted to the contra that the trial Judge had totally misappreciated the positive evidence and was clearly wrong in finding that either Saibaba or DWs.1 to 3 were being carried as passengers for hire or reward. Venkateswara Rao was not in any event acting in the course of his employment if he had picked up Saibaba or Dws.1 to 3. The plaintiff cannot be denied the benefit of the insurance coverage because of the unauthorised acts committed by the driver Venkateswara Rao contrary to the express directions given to him by the plaintiff. Even otherwise, no claim we made in the suit for any compensation on account of the death of Saibaba or the injuries suffered by any of DWs.1 to 3. The insurer cannot, therefore, disown its liability to indemnify the plaintiff for the costs incurred by him either in getting the lorry repaired or for meeting the obligation cast on him pursuant to Ex.A-22 order to pay to the widow of Venkateswara Rao the total sum of Rs. 8,218-90p.

4. The first disputed fact which arises on the pleadings is the question raised by the insurer that the lorry was being driver rashly or negligently at the time it was involved in the accident. The insurer has merely filed Ex.B-1, the copy of the F.I.R. registered on the report given by Lakshmaiah, the alleged cleaner of the lorry. Though the crime was registered under S. 304 I.P.C., there is nothing which can be spelt out from the report given by Lakshmaiah that the accident took place because of any rash or negligent driving of the lorry. It was merely mentioned in the report that the lorry suddenly swerved towards the left and fell by the side of the culvert. In the claim Ex.B-3 made by the plaintiff, the details of the nature and cause of the accident were given in the following manner. The lorry was then proceeding at a speed of 40 K.Ms. per hour. The driver saw some bullock carts in front of the vehicle and also there was one vehicle coming in the opposite direction. When the driver of the vehicle was continuously giving the horn, the bullocks got afraid. In order to save them, he applied brakes and swerved the lorry towards extreme left, with the result the vehicle skidded, dragged and fell down towards the left side and those were the facts noted by the cleaner. Dw-4 working at that time as Sub-Inspector of Police, Nakrekal, has merely produced Ex.B-1 F.I.R. copy DWs.2 to 4 who were examined by the insurer, have all given consistent evidence that they were sleeping at the time the accident took place and they cannot say how the accident took place. According to the plaintiff, Lakshmaiah was not the cleaner engaged by him and that one Venkatarao was the cleaner engaged by him. From the evidence of DW-4 himself, we get that Lakshmaiah who gave the report Ex.B-1, was temporarily employed two days prior to the incident, but this statement is obviously based on some evidence collected by DW-4 during the course of his investigation. There is thus no direct evidence adduced by the insurer that the time the accident took place the lorry was being driven in a rash or negligent manner. The insurer did not also let in any evidence of a circumstantial nature on the basis of which the presumption under the doctrine of res ipsa loquitur could be raised. The mere fact that the lorry became involved in the accident is not by itself sufficient to presume any rash or negligent driving. We accordingly reject the plea raised by the insurer that there was rash or negligent driving of the vehicle.

5. The second disputed fact relates to the question whether Saibaba and DWs. 1 to 3 were in fact being carried as passengers in the vehicle at the time it met with the accident. We have carefully appreciated the evidence of DWs. 1 to 3 and feel satisfied that they were in fact travelling in the lorry at the time the accident took place. They are all residents of Basavapatna in Karnataka State. They have absolutely no reason to give any false evidence. The circumstance that they did not preserve the record of medical treatment which they had undergone at various places for the injuries sustained by them cannot discredit their positive testimony. Such record would not have been retained by them which they could not and did not make any claim for compensation for the injuries sustained by them. We, accordingly, find on this disputed fact in favour of the Insurer.

6. The third and the more important disputed fact relates to the question whether Saibaba and DWs. 1 to 3 were being conveyed as passengers for hire or reward. The positive evidence of DWs. 1 to 3 is to the following effect. On the evening of 3-10-1979 they had gone to the Hyderabad bus stand to catch a bus for Vijayawada. They could not immediately get a bus and, therefore, they got into a lorry which developed some engine trouble enroute at Narketpalli. These four persons paid each a sum of Rs.8/- to the driver of that lorry. As they were waiting at Narketpalli the lorry ADB 2367 carrying some aluminium ingots arrived there and there was some conversation between the driver of the lorry in which they proceeded from Hyderabad and travelled up to Narketpalli and Venkateswara Rao, the driver of the lorry ADB 2367. All of them got into lorry ADB 2367 and did not pay any money to the driver of the lorry ADB 2367. There is no evidence that the driver of the lorry in which they first travelled, paid any amount to Venkateswara Rao at the time these four persons got into the lorry at Narketpalli. As we have earlier stated,there is nothing which could reasonably be suggested that DWs.1 to 3 had any reason to give any false evidence. In fact they were all examined by the insurer and no attempt was made even to declare any of DWs. 1 to 3 as having turned hostile during their examination. A mere suggestion is made that DWs. 1 to 3 were influenced by the plaintiff to give certain accommodating statements which suggestion is denied by them. The learned trial Judge is therefore, not correct in rejecting that part of the evidence of DWs. 1 to 3 when they stated that they have not paid any amount to the driver of the lorry ADB 2367. One should go by the positive evidence given by DWs.1 to 3 version spoken to by them when they have said that they have not paid any amount to the driver of the lorry ADB 2367. Mr. Subba Reddy is, therefore, correct in his submission that the trial Judge went wrong in finding that Saibaba and DWs. 1 to 3 were being carried as passengers for hire or reward. We accordingly find on this disputed fact against the insurer.

7. The last disputed fact relates to the question whether Venkateswara Rao was acting in the course of his employment when he permitted Saibaba and DWs. 1 to 3 to travel as passengers in the lorry either for hire or reward or otherwise. The only evidence available on this disputed fact is the statement made by the plaintiff according to whom he gave specific directions to the driver not to carry any passenger for hire. It is true that it is notoriously common for passengers being carried in lorries sometime for hire or reward and sometime even gratis. The Court cannot overlook an equally notorious circumstances that passengers would be carried in lorries more often without the knowledge and against the express directions of the owner of the vehicles not to carry any such persons who were not connected in any manner with the goods which were being transported in the lorry at that moment. This evidence of the plaintiff has an aspect of naturalness and truth which we see no reason to reject. Acting on his evidence, we hold that Venkateswara Rao was not acting in the course of his employment when he permitted Saibaba and DWs. 1 to 3 to travel as passengers in the lorry between Narketpalli and Hyderabad.

8. We may, in this context, refer to the following observations made by the Supreme Court in Sitaram v. Santanuprasad, AIR 1966 SC 1797 (para 27).

'A master is vicariously liable for the acts of his servant acting in the course of his employment.....for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well settled that if the servant at the time of the accident, is not acting within the course of his employment but is doing something for himself, the master is not liable. There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met.'

9. The aforesaid decision of the Supreme Court was referred to in M. Vishalakshi v. Lutheran Church. : AIR1978AP310 for negativing the liability of the master in respect of an act done by the driver for himself which was not part of the duty or job entrusted to him. If such a liability had been cast on the owner of the vehicle as in Bhoi Vanaji Dhulaji v. Patel Shivabhai Kashibhai, : AIR1980Guj154 it was because no evidence was let in by the owner, prohibiting carriage of passengers by the driver in a trailer attached to the tractor which became involved in an accident. We are, in the case on hand, concerned with the claim made by the owner himself for recovering the cost of repairs to the vehicle and the amount he was directed to pay to the widow of Venkateswara Rao under the Workmen's Compensation Act. The insurer cannot, therefore, disown its liability by taking the ground that Venkateswara Rao was carrying at that time Saibaba and DWs. 1 to 3 when the plaintiff expressly prohibited Venkateswara Rao from so doing.

10. In the view we have taken on the facts that no rashness or negligence was established as against Venkateswara Rao and that Saibaba and DWs. 1 to 3 do not answer the description of 'passengers for hire or reward' and that Venkateswara Rao committed the illegal act acting for himself despite the plaintiff's specific instructions to him not to do so, the abstract questions of law that have been argued before us do not really (sic) as the learned counsel mad those submissions on these abstract questions, we have made a brief reference to those submissions (Sic) only reject those made by Mr. Somayajulu, learned counsel appearing for the insurer-appellant.

11. Exhibit A-1 contains the terms and conditions of the policy which govern the rights of parties. The insurance cover is provided in respect of the driver as well. The policy excluded the liability of the insurer if the vehicle was used for the conveyance of passengers for hire or reward. This limitation has to be read in the context of the relevant provisions of the Motor Vehicles Act. In our view, the limitation has to be read that to claim by a passenger conveyed for hire or reward in a public carrier can be enforced against the insurer in terms of this policy. Such limitation cannot be interpreted as enabling the insurer to disown its liability even in respect of claims which could otherwise be enforced against the insurer in terms of the policy. In particular monies payable in respect of damage to the vehicle shall be paid to the owners of the vehicle which at the time the incident took place, was the subject-matter of a hire purchase agreement in favour of M/s Srinivasa Financial Corporation, Guntur. The plaintiff, as the hirer of the vehicle, incurred all the expenses for getting the vehicle repaired and has, therefore, become entitled to recover such amount incurred by him under that head. The policy also provided for another clause for the necessary insurance coverage for amounts payable under the Workmen'' Compensation Act. Under the general exceptions, the insurer had provided that it shall not be liable in respect of any accident while the motor vehicle was being used otherwise than in accordance with the limitation as to use. Under the A.P.Motor Vehciles Rules, R.1(k), passenger is defined as meaning any person travelling in a public service vehicle other than the driver or the conductor or an employee of the permit holder while on duty. R.213 provides that not more than six persons in all in addition to the driver shall be carried in the vehicle except with the permission of the Transport Authority. The Rules, therefore, contemplated carrying of passengers not exceeding six in a public carrier. The contravention of the terms of the policy would arise only in a case where such passengers were carried in a public carrier for hire or reward but not otherwise. There were cases which decided that the owner of the goods or his employees could properly be carried in a public carrier and the insurance coverage would be available in their favour in respect of the death or injuries suffered by either the owner of the goods or by the servants accompanying the goods. Three such instances are illustrated in M. Suryanarayana v. G. Satyavati; (1979) 1 APLJ (HC) 401, United India Fire & General Insurance Co. Ltd. v. Maddali Susheela, 1979 Acc CJ 110 (Andh Pra) and T.M.Renukappa v. Fahmida, : AIR1980Kant25 , In Ambaben v. Usmanbhai Amirmiya, : AIR1979Guj9 , a Full Bench of the Gujarat High Court had answered the question referred to it:

'So far as the policy contemplated by S.95(1)(b) is concerned, it does not cover the risk to (A) persons other than those who were carried for hire or reward at the time of occurrence of event which gives rise to the claim against the insurer and (B) passengers other than those who were bona fide employees of the owner or hirer of the vehicle not exceeding six in number, carried in pursuance of or by persons of a contract of employment. We wish to make it clear that nothing that we have stated in the course of this judgment should be considered to affect the liability in respect of six bona fide employees of the owner or hirer of the vehicle and the provisions of S.95 (1)(a)'.

The claim involved in the suit, not being a claim made for the benefit of either the legal representatives of Sai Baba or any of DWs.1 to 3 is, therefore, clearly enforceable against the insurer. Jones v. Welsh Insurance Corporation, (1937) 4 All ER 149; Seri v. Oriental Fire & General Insurance Co. Ltd., 1969 Acc CJ 158 (Singapore) and Queensland Insurance Co. v. Rajalakshmi Ammal, 1970 Acc CJ 104 (Mad) were all cases where the vehicle was used for a wholly different purpose by the owner himself or with his consent and the insurer in all those cases was absolved for liability because of such wholly different use made by the owner himself or by his servant with his consent. In the case on hand, the vehicle was admittedly carrying a load of tonnes of aluminium ingots. The vehicle was being used mainly as a public carrier. It was while so using the vehicle as a public carrier that Venkateswara Rao, for reasons of his own, disobeyed the instruction given to him by his master and carried Saibaba and DWs . 1 to 3 as passengers between Narketpalli and Vijayawada. Such an unauthorised and a minor deviation made by Venkateswara Rao cannot disentitle the plaintiff from enforcing his claim under the policy against the insurer. The learned Subordinate Judge is, therefore, correct in holding the insurer liable for the amounts decreed against it. The appeal has no merits and is accordingly dismissed with costs.

12. Appeal dismissed.


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