CIVIL APPEAL 2636 of 2006 on 30 August 2006

JUDGMENT:

This appeal is filed by the claimants against the judgment and decree dated 30.08.2006 passed in M.V.O.P.No.702 of 2000 by the Chairman, Motor Vehicles Accidents Claims Tribunal-cum-I Additional District Judge, Guntur (for short, ‘the Tribunal’), whereby the Tribunal awarded compensation of Rs.1,52,000/- with interest at the rate of 7.5% per annum from the date of petition till the date of deposit for the death of one Vulava Alluraiah (hereinafter referred to as ‘the deceased).

2. The appellants/claimants filed M.V.O.P.No.702 of 2000 under Section 166 of Motor Vehicles Act claiming compensation of Rs.2,00,000/- for the death of the deceased in a motor vehicle accident occurred on 23.05.2000 alleging that the deceased went to Marturu Village to attend the funeral of his sister’s husband. After attending the funeral function, he boarded the offending lorry bearing No.AP-9U-8649 at Marturu to go to Kavali. When the vehicle reached Rudrakota Village, the driver of the offending vehicle has driven the vehicle in a rash and negligent manner and dashed against the lorry bearing No.ADG-55. Due to accident, the deceased, who was travelling in the cabin of the lorry, received multiple injuries and died while undergoing treatment. The Station House Officer, Kavali Rural Police Station, registered a case in Crime No.26 of 2000 for the offences punishable under Sections 337 and 304-A I.P.C. against the driver of the offending vehicle. At the time of death, the deceased was aged about 55 years and used to earn Rs.1,00,000/- per annum on agriculture and Rs.3,000/- per month on business. Appellant No.1 is the wife, appellant Nos.2 and 3 are the sons and appellant No.4 is the minor daughter of the deceased. The appellants are dependants on the income of the deceased and he was hale and healthy at the time of the accident. Due to sudden demise of the deceased in the accident, the appellants lost their dependency and hence, prayed to fix the liability on respondent Nos.1 to 3 to pay the compensation.

3. Respondent Nos.1 and 2 remained ex parte. Respondent No.3-Insurance Company filed written statement inter alia denying all the averments made in the claim petition and further states that it is the duty of the petitioners to prove that the driver of the offending vehicle was having valid and effective driving licence and first respondent-owner of the offending vehicle was having fitness certificate and route permit to the lorry bearing No.AP-9U-8649 at the time of the accident and there was no rash and negligent driving on the part of the driver of the offending vehicle. The offending vehicle was registered with the insurance company as a goods carrying vehicle i.e. public carrier. The deceased was travelling as an unauthorised passenger in the goods vehicle and the vehicle is covered by only act policy. At the time of accident, the deceased was travelling in goods lorry as a gratuitous passenger. Therefore, this respondent is not liable to pay compensation.

4. Basing on the above pleadings, the Tribunal framed the following issues for trial:

1. Whether the accident took place due to the rash and negligent driving of the driver of lorry No.AP 9U 8649? driving of the driver of lorry No.AP 9U 8649?

2. Whether the petitioners are entitled for the compensation, if so, what amount and from which of the respondents? what amount and from which of the respondents?

3. To what relief?

5. During the course of trial, on behalf of the appellants/petitioners, PW.1 was examined and Exs.A.1 to A.5 were marked. On behalf of the third respondent, RW.1 was examined and Ex.B.1 was marked.

6. The Tribunal considering the evidence of PW.1 and Ex.A.5-certified copy of Motor Vehicle Inspector Report held that the lorry bearing No.AP 9U 8649 met with an accident on 23.05.2000. A perusal of Ex.A.3-certified copy of inquest report and Ex.A.4-certified copy of post-mortem certificate reveals that the deceased died due to injuries sustained in a motor accident occurred on 23.05.2000. As per the averments of Ex.A.1-certified copy of F.I.R and Ex.A.2-certified copy of charge sheet, the accident occurred due to rash and negligent driving of the driver of the offending vehicle bearing No.AP 9U 8649 by the second respondent. The evidence of PW.1 is supported by Exs.A.1 to A.5. When there is no contrary evidence available on record to the evidence of PW.1 and Exs.A.1 to A.5, the Tribunal fairly concluded that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle and in the said accident, the deceased received injuries and died. The Tribunal based on Ex.A.3-certified copy of inquest report and Ex.A.4-certified copy of post-mortem certificate came to the conclusion that the deceased was aged about 55 years at the time of accident. As per the evidence of PW.1, at the time of the death, his father was having Ac.10.00 cents of land and used to earn Rs.1,50,000/- per annum. The deceased was an agriculturist and the Tribunal taken the income of the deceased at Rs.1,500/- per month. Out of said income, 1/3[rd] was deducted towards his personal expenses i.e.,Rs.1,500 x 1/3 = Rs.500/-. The Tribunal came to the conclusion that the deceased could have contributed an amount of Rs.12,000/- (Rs.1,000/- x 12) for his family members. The deceased was aged 55 years. The multiplier ‘11’ can be applied to arrive loss of dependency. The loss of dependency comes to Rs.1,32,000/- (Rs.12,000 x 11). Appellant No.1, being the wife of the deceased, is entitled for consortium of Rs.15,000/- and Rs.5,000/- towards transportation of dead body and funeral expenses. The Tribunal under various heads granted total compensation of Rs.1,52,000/- with interest at the rate of 7.5% per annum and the same was apportioned. Appellant.1-wife is entitled to Rs.62,000/-, appellant No.2-son is entitled to Rs.20,000/-, appellant No.3-son is entitled to Rs.20,000/- and appellant No.4- minor daughter is entitled to Rs.50,000/-. The Tribunal exonerated the liability of the third respondent-insurance company on the ground that the deceased was travelling in the goods vehicle as a gratuitous passenger. The insurance policy-Ex.B.1 does not cover the risk of the gratuitous passengers travelling in the goods vehicle and fixed the liability on respondent Nos.1 and 2- driver and owner of the offending vehicle. Being aggrieved by the order, the appellants/claimants filed this appeal.

7. Learned counsel for the appellants contended that the Tribunal ought to have taken the income of the deceased at Rs.3,000/- per month instead of Rs.1,500/- per month. He placed reliance on the judgment in National Insurance Company Limited vs. Baljit Kaur and others[1] and also sought for enhancement of the compensation as the Tribunal granted only Rs.1,52,000/- against Rs.2,00,000/-. Learned counsel mainly contended that exonerating the third respondent-insurance company from the liability to pay compensation and fixing the liability jointly and severally only on the driver and owner of the offending vehicle is illegal and contrary to the judgment of the Hon’ble Supreme Court in Sri Pramod Kumar Agrawal and others vs. Smt. Mushtari Begum and others[2]and considered the judgment of the Hon’ble Supreme Court in Manuara Khatun and others vs. Rajesh Kr. Singh and 1 2004(1) ALD 98 (SC)

2 2004 SAR (Civil) 745

others[3], wherein the Hon’ble Supreme Court keeping in view the benevolent objects and other factors, directed the insurance company to pay and recover from the insured by applying the principle of pay and recovery. This Court, having gone through the judgment referred above, came to the conclusion that in the peculiar facts and circumstances of the case, the principle of pay and recovery is applicable to the present case and accordingly, the third respondent-insurance company is directed to pay the compensation awarded and recover the same from the insured by filing execution proceedings. With regard to enhancement of quantum of compensation, the Tribunal has rightly taken the income of the deceased as Rs.1,500/- per month. The Tribunal rightly taken the annual income of the deceased as Rs.12,000/- and loss of dependency as Rs.1,32,000/- (Rs.12,000 x 11). However, appellant No.1, being wife of the deceased, is entitled for consortium of Rs.40,000/-. In all, the appellants are entitled for a sum of Rs.70,000/- under conventional heads as per judgment of the Hon’ble Supreme Court inNational Insurance Co. Ltd. vs. Pranay Sethi and others[4].

8. Accordingly, the Appeal is allowed. The appellants are entitled for enhanced compensation of Rs.2,02,000/-, but restricted to Rs.2,00,000/-, as claimed by them along with interest at the rate of 7.5% per annum from the date of petition till the date of realization as just and fair compensation. Respondent No.3 is directed to pay compensation awarded to the appellants by applying the principle of pay and recover. Thereafter, respondent No.3 is entitled to recover the same from insured and driver, in the very same award proceedings. On such deposit, the appellants are entitled for the following amount along with proportionate costs and interest:

3 2017 (2) ALD 65 (SC)

4 (2017 ACJ 2700)

Appellant No.1 is entitled for Rs.1,00,000/- Appellant Nos.2 and 3 are entitled for Rs.25,000/- each Appellant No.4 is entitled for Rs.50,000/- Consequently, Miscellaneous Petitions, if any, pending in this Appeal shall stand closed.

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JUSTICE M.GANGA RAO

Date: 19.08.2019 Ivd

Ivd

THE HON’BLE SRI JUSTICE M.GANGA RAO

M.A.C.M.A.No.2636 OF 2006

Date: 19.08.2019