Polammarasetti Varana Venka Satyanarayana Vs. Suddha Apparao Naidu (Dead) and Others - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)sections 140, 166, 147 & 149 :[s.b. sinha & p. sathasivam, jj] liability of insurer - in the present case, a jeep colliding with a truck truck involved in accident was not insured -tribunal recording that driver of jeep was not negligent in driving jeep and not contributing to accident - high court fastened the liability on insurer of jeep - held, only because truck was not insured, appellant could not be made liable to pay compensation where liability being incurred by driver and owner of truck and not by driver and owner of jeep. section 147: [s.b. sinha & p. sathasivam, jj] liability of insurer held, gratuitous passengers are not covered. even otherwise, the deceased being a gratuitous passenger in the jeep, the appellant insurer of the jeep cannot be held liable to pay compensation to the claimants. section 173: [s.b. sinha & p. sathasivam, jj] interference in findings of facts held, the question as to whether the driver of the jeep or the truck and/or both of them were responsible for negligence in driving their respective vehicles, which let to the said accident is essentially a question of fact. the tribunal has categorically recorded a finding that the driver of the jeep was not driving his jeep rashly and negligently and he was not at fault and that the accident occurred due to rash and negligent driving of the truck by its driver. while reversing the said finding of fact, so as to fasten the liability on the insurance company, the high court was required to assign sufficient and cogent reasons. no such finding to the effect that both driver as also the jeep contributed to the negligence having been recorded by the high court, the question of fastening the joint liability by the insurance company did not arise. only because the truck was not insured, the same by itself did not mean that the appellant insurance company can be held liable to reimburse the claim to the claimants wherefor liability had been incurred by the owner and driver of the truck and, therefore, no liability has been incurred by the driver and owner of the jeep concerned. g.n. ray and g.t. nanavati, jj.1. this appeal is directed against the judgment of the andhra pradesh high court dated april 16, 1987, passed in second appeal no. 308 of 1981. by the impugned judgment, the high court has dismissed the second appeal preferred by the appellant. one bheemarasetti adinarayana naidu was the plaintiff in suit no. o.s. no. 55 of 1967 in the court of district munsif, anakapalli which was renumbered as os no. 260 of 1969 in the court of principal district munsif, yellamanchili. such suit was instituted by the plaintiff for redemption of usufructuary mortgage created by deed dated december 11, 1946 (ext. a-l) on the basis of the sale deed dated september 19, 1960 (ext. a-2) under which the said plaintiff purchased the property with a right to redeem. the appellant was the second defendant in the said suit. there is no dispute that at the time as creating such usufructuary mortgage in 1946, the appellant was continuing as a lessee and the lease was to expire in 1948. the appellant contended that his right as lessee continued despite the said usufructuary mortgage and in view of such right continuing, he had acquired non-evitable right and, therefore, there was no question of taking over possession of the property from him by redemption of mortgage. such contention has not been accepted either by the court below or by the high court.2. mr. k. ram kumar, learned counsel appearing for the appellant has contended that simply on execution of usufructuary mortgage, the right of the lessee does not come to an end unless and until it can be established that such lease hold interest had been terminated or the lease hold interest had been surrendered either by express conduct of the parties or by necessary implication flowing from the deed of mortgage. save as aforesaid, it must be held that the lease hold interest continues notwithstanding creation of usufructuary mortgage. in support of such contention, reliance has been made to the decision of this court in gopalan krishnakutty v. kunjamma filial sarojini amma and ors. : [1996]3scr355 . after taking into consideration of the decisions of this court in narayan vishnu hendre v. babuao savaiaram kohawale : air1996sc368 and in gambangi applaswamy naidu v. venkataramanayya patro : [1985]1scr651 and in shah mathuradas madanlal & co. v. nayabba shankarappa malave : [1976]3scr789 it has been held in gopalan krishnakutty's case that simply on the execution of the usufructuary mortgage deed, surrender of tenancy right cannot be inferred out the question of continuance of lease hold interest upon execution of usufructuary mortgage is required to be decided on the facts situation of the case.3. mr. ram kumar has submitted that there is no automatic merger of interest of the lessee with that of the mortgagee and in the absence of proof of surrender by the defendant of this lease hold interest and to hold only the right of mortgage, the plaintiff is not entitled to automatically claim possession of the lease hold premises by redeeming the mortgage.4. we have taken into consideration the mortgage deed executed in 1946. in our view, a clear intention of only retaining the mortgage's interest is to be inferred in view of the specific statement that on redemption, the mortgagee should deliver possession to the mortgagor. we may indicate that the expression to that effect used in the mortgage deed has been noted by the courts below. we may. also indicate that there is no indication in the mortgage deed as to how the rent payable by the mortgagee qua lessee was to be adjusted between the parties. the absence of any mode of adjustment of lease hold rent implies that it was not intended that despite the said mortgage, parties intended that the lease hold interest was to continue. it may also be indicated here that lease hold interest was to expire in 1948. in the absence of any payment of rent for such lease hold interest and acceptance of such payment after expiring of the period of lease it can not also be contended and that there was a case of holding over by the lessee. in the aforesaid circumstances, the finding by the courts below that the lease hold interest has come to an end and the plaintiff was entitled to the redemption of the mortgage and to take delivery of the properties under these mortgage deed cannot be held to be unjust or improper. we, therefore, do not find any reason to interfere with the impugned judgment of the high court. the appeal, therefore, fails and is dismissed. no costs.