CIVIL MISCELLANEOUS 2079 of 2004 on 30 March 1999

COMMON JUDGMENT:

C.M.A.No.2079 of 2004 is filed aggrieved by the order, dated 17.11.2003, in O.P.No.118 of 2000 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Nellore.

2. C.M.A.No.3548 of 2004 is filed aggrieved by the order, dated 17.11.2003, in O.P.No.119 of 2000 on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Nellore.

a. O.P.No.118 of 2000 is filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.1,25,000/- for the death of the deceased, Yenamala Meeraiah, who died in the road accident on 30.03.1999 at about 09.30 a.m. The claimants are his wife and children.

b. O.P.No.119 of 2000 is filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.1,25,000/- for the death of the deceased, Sankranthi Chinnamma, who died in the same road accident. The claimants are her children.

c. The deceased in O.P.No.114 of 2000 and the deceased in O.P.No.119 of 2000 are husband and wife.

3. Since the claims arose out of the same accident, the Tribunal passed a common order in O.P.Nos.114, 118 and 119 of 2000.

4. The facts stated by the claimants in the petitions before the Tribunal briefly stated are as follows:

On 30.03.1999, the deceased referred in O.P.Nos.114 and 119 of 2000 loaded their rice bags, vegetables and one wooden cot in a lorry bearing RC.No. AHT 8199 owned by the 1[st] respondent and insured BSB, J C.M.A.No.2079 & 3548 of 2004

with the 2[nd] respondent. The deceased in O.P.No.118 of 2000 loaded the vessels in the same lorry. While they were travelling in the lorry along with their goods by paying freight charges, another lorry bearing RC.No.AP 5/ X 859 owned by the 3[rd] respondent and insured with the 4[th] respondent, driven by its driver in a rash and negligent manner came in the opposite direction and hit the lorry bearing RC.No.AHT 8199 which was also being driven by its driver in a rash and negligent manner. As a result of such collision, the deceased were engulfed by flames as the lorry caught fire and they died on the spot due to the burns.

5. The 1[st] and the 3[rd] respondents remained ex parte.

6. The 2[nd] and the 4[th] respondents denied their liability and also the narration of the facts stated by the claimants. They further contended that the deceased were unauthorized passengers.

7. After hearing both the parties and considering the evidence, the Tribunal found that the accident occurred as the driver of the lorry bearing RC No.AHT 8199 drove it in a rash and negligent manner and thereby, the lorry fell down by its side, moved for some distance and dashed the lorry of the 3[rd] respondent and while it was running, fire came out and the tobacco load in that lorry caught fire and consequently, the driver and five other passengers in the lorry died and the bodies of the deceased were beyond recognition, however, they were identified with the help of the cleaner who could run away immediately after the accident and he identified them with the photographs shown by the family members of the deceased. The Tribunal further specifically held that though two vehicles were involved in the accident, the evidence revealed that the driver of the other lorry was not at all responsible for the accident as the driver of the lorry tried to avert the accident, yet, this lorry dashed against that lorry. Thus, the claims against the respondents No.3 & 4 were dismissed.

8. Insofar as the liability against the respondents Nos.1 & 2 is concerned, the Tribunal assessed compensation of Rs.1,73,300/- payable in O.P.No.119 of 2000 and Rs.70,000/- in O.P.No.118 of 2000, however, limited the award by granting only an amount of Rs.1,25,000/- in O.P.No.119 of 2000, which is the amount of compensation sought by the claimants therein.

9. Aggrieved by the award and the decree, these appeals were preferred.

10. The appellants / claimants raised the following grounds:-

(i) The Tribunal erred in granting compensation of Rs.70,000/- as against the claim of Rs.1,25,000/- in O.P.No.118 of 2000 and further, having assessed compensation at Rs.1,73,300/-, the Tribunal erred in limiting the same to Rs.1,25,000/- in O.P.No.119 of 2000.

(ii) The Tribunal erred in directing the 1[st] respondent alone to pay the compensation and dismissing the application against the respondents Nos.2 to 4; The deceased were travelling in the lorry of the 1[[st]]

(iii) The deceased were travelling in the lorry of the 1[[st]]respondent bearing No.AHT 8199 along with their goods after paying freight charges and the accident occurred on account of the rash and negligent driving of both the vehicles;

(iv) The Tribunal ought to have fixed joint and several liability on all the respondents and granted decree against all the respondents.

11. The learned counsel for appellants in C.M.A.No.3548 of 2004 mainly argued that the Tribunal erred in limiting the amount of compensation to the amount claimed though the quantum of compensation was arrived by the Tribunal at a higher amount of Rs.1,73,300/-. It is also argued by the appellants in both the appeals that the Tribunal erred in dismissing the claims against the 2[nd]respondent in spite of evidence that they were travelling along with the goods. It is further argued in both the appeals that the Tribunal committed error in dismissing the claims against the respondents No.3 & 4 though there was negligence of the driver of the other lorry as well.

12. On the other hand, the learned counsel for the 2[nd] respondent / insurance company submitted that a person carrying small luggage such as vegetables, and vessels cannot be treated as owner of the goods and therefore, the Tribunal rightly dismissed the claim against the 2[nd] respondent.

13. No representation for the 4[th] respondent.

14. Insofar as the rash and negligent driving of the drivers of vehicles is concerned, this Court does not find any reason to interfere with the finding of the Tribunal as it has exhaustively dealt with the evidence and rightly appreciated and found that the driver of the 1[st] respondent alone is liable for causing the accident. Therefore, the appeal against the respondents 3 & 4 is liable to be dismissed.

15. The Tribunal assessed the following amounts:- O.P.No.119 of 2000:- O.P.No.118 of 2000:-

16. Insofar as the quantum of compensation is concerned, the Tribunal committed error in limiting the amount of compensation to the amount claimed by the appellants, though it has arrived at the amount of compensation payable at Rs.1,73,300/- as it is settled law that irrespective of the amount claimed, the amount which is just and reasonable shall be awarded as compensation.

17. Insofar as the amount of compensation payable in O.P.No.118 of 2000 is concerned, the amount of compensation does not require any interference.

18. Insofar as the liability of the 2[nd] respondent is concerned, the Tribunal erred in holding that the deceased were mere unauthorized passengers, despite its own finding that the evidence showed that they were travelling along with bag, vessels, vegetables and a cot, nevertheless described them as small items. They cannot be treated as BSB, J C.M.A.No.2079 & 3548 of 2004

hand luggage to carry by walk. Just because there is another voluminous luggage of tobacco, the goods carried by the deceased cannot be discarded as though they are not goods being carried in the same vehicle. Thus, the finding of the Tribunal that when the deceased carried a bag, vessels or vegetables and travelled in the lorry in which there was primary load of tobacco, they cannot be construed as owners but they are only passengers, is erroneous.

19. It was also argued by the counsel for the insurance company that a person who boards a vehicle en route cannot be said to have contract with the owner of the lorry and therefore, such a passenger cannot be regarded as a person travelling along with the goods as an owner. The Tribunal erred in holding that there is no contract between the owner of the lorry and the owner of the goods and that it is only a little adjustment between the driver of the lorry and persons travelling in the lorry with the luggage. The so called adjustment is a contract in commercial terms. A contract can be entered directly between the parties or through their agents. Agency can be ‘express’ or ‘implied’. It is most common that drivers of these vehicles are allowed by owners of vehicles to carry passengers on payment of fare. It is a well known fact. As such, it can be reasonably presumed that by virtue of such authority, the driver of the lorry allowed the passengers to board the lorry with the goods by paying fare. Since the Motor Vehicles Act, 1988 is a beneficial legislation, proof beyond reasonable doubt with accurate pleadings is not expected. All such things necessary to decide the claim can be reasonably evaluated from the proved facts. Therefore, it is unjust to decline the claim against the 2[nd] respondent on the ground that there is no direct contract between the deceased and the owner of the lorry, i.e., the 1[st] respondent. Thus, this Court is of the view that the Tribunal erroneously dismissed the claim against the 2[nd] respondent.

20. In the result, C.M.A.No.2079 of 2004 is allowed in part confirming the amount of compensation of Rs.70,000/- awarded by the Tribunal with interest @ 9% per annum from the date of the petition till the date of realization, however, both the respondents No.1 & 2 are jointly and severally liable to pay the compensation.

21. C.M.A.No.3548 of 2004 is allowed in part by enhancing the amount of compensation awarded by the Tribunal from Rs.1,25,000/- to Rs.1,73,300/- with interest @ 9% per annum from the date of the petition till the date of realization payable by both the respondents No.1 & 2 with joint and several liability.

22. The appeal against the respondents No.3 & 4 is dismissed in both the appeals.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

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B.S.BHANUMATHI, J