R VENDATESWARA RAO Vs. P VIJAYA LAKSHMI

JUDGEMENT

(1.) The appellant was travelling in lorry ADF 446 from Gudur to Nellore on 16/07/1980, and when the lorry reached a point near Spinning Mills is Dargamitta, Nellore town, an accident occurred in which the appellant sustained injuries. The appellant laid a claim under section 110A of the Motor Vehicles Act, 1939, for a compensation of Rs. 26,800. He impleaded the first respondent, the owner, and the second and third respondents, the insurance companies. He did not implead the driver as a party respondent. After framing fence has taken place as a result of rash and negligent driving of the driver of the lorry ADF 446. But, it found that the first respondent-owner expressly instructed the driver not to carry any passengers for hope or reward. Therefore, the owner is not liable equally since exhibit B- 1 policy does not cover the risk for passengers being carried in the vehicle. The third respondent with whom the vehicle was insured was found not liable. As a fact, it was found that the appellant sustained injuries. He would be entitled to a compensation of Rs. 14,500. In view of the fact that both the first respondent owner and the third respondent-insurance company are not liable for the compensation, the Tribunal below dismissed the application as against which the present appeal has been filed.

(2.) In this appeal, Shri M.V. Raman Reddy, learned counsel for the appellant, has contended that though the driver who is examined as R.W-2 has not denied that he was given free lift to the appellant, the evidence clearly establishes that R.w-3 collected fare of Rs. 5 from the appellant and, therefore, it is for hire or reward. When the driver during the course of his employment, i.e., while driving the vehicle has collected fare and taken the appellant as a passenger, it is for hire or reward. Therefore, the first respondent owner is vicariously liable or payment of compensation. Since the owner is liable, the insurance company is also equally liable for payment of compensation. In support thereof, he relied upon a Division Bench judgment of the court in United India Fire and General Insurance Co. Ltd. v. Maddali Suseela p[1979] ACJ 110 (AP).

(3.) The above contentions have been resisted by Sri P. Gangaiah Naidu, learned counsel for the first respondent, stating that the evidence on record clearly establishes that he owner, i.e, the first respondent gave express instructions not to take any passenger for hire or reward. Therefore, even if there is any amount taken by the driver, this act is outside the course of his employment and it is an unauthorised act.. Therefore, the first respondent is not liable for the payments of compensation. In support thereof, he relied upon the judgment of a Division Bench of this court M. Vishalakshi v. Luthern Church, AIR 1978 AP 310.