Devathoti Manneiah, v. Ch. Yedukondalu,

HON'BLE SRI JUSTICE A. SHANKAR NARAYANA M.A.C.M.A. No.3141 OF 2005 JUDGMENT:

Appellant are the petitioners in M.V.O.P. No.1033 of 2001 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-VIII Additional District Judge (Fast Track Court), Guntur (for short, 'the Tribunal'). Aggrieved by the order and decree dated 31.08.2005 passed by the Tribunal, whereby and whereunder, a sum of Rs.1,77,000/- was granted as compensation with interest at 6% per annum and fastened liability only on the owner of the vehicle, who is respondent No.1, while dismissing the claim petition against the insurer of the vehicle, who is respondent No.2, the instant appeal is preferred under Section 173 of the Motor Vehicles Act, 1988 (for short, 'the Act') seeking to fasten liability on respondent No.2Insurance Company and enhance the compensation awarded by the Tribunal.

2. Appellants are the petitioners, while respondent Nos.1 and 2 herein, who are the owner and insurer of the lorry bearing registration No.ATV 7458, respectively, are respondent Nos.1 and 2, respectively, in the original petition.

3. For the sake of convenience, the parties hereinafter referred to as they were arrayed before the

Tribunal in the original petition.

4. The facts in brief are that on 07.07.2001 at about 11 a.m., the deceased, who was wife of petitioner No.1 and daughter of petitioner No.2, was proceeding in a lorry bearing registration No.ATV 7458 owned by respondent No.1 as a loading and unloading coolie from Mangalagiri to reach Pathuru for loading sand on byepass road. When they reached near Pathuru cross road, since the driver of the lorry drove it in a rash and negligent manner at high speed, it turned upside down, due to which the deceased and other coolies received grievous injuries and the deceased died while she was being shifted to hospital. Concerned police also registered a crime against the lorry driver. The petitioners, stating that the deceased was 20 years old earning Rs.60/- to Rs.70/- per day as a loading and unloading coolie and there are no other dependents or legal representatives except themselves, sought a sum of Rs.2,00,000/- as compensation under Sections 163-A and 166 of the Act and Rule 455 of the Rules framed thereunder from respondent Nos.1 and 2, who are the owner and insurer of the accident vehicle.

5. Respondent No.1 remained ex parte.

Respondent No.2 strongly resisted the claim. A specific plea was taken that the deceased was an unauthorized traveler in the lorry and, thus, it accounted for violation of

terms and conditions of the policy and, therefore, no liability can be fastened on it, and, thereby, sought to dismiss the claim against it.

6. Basing on the said pleadings, the Tribunal framed the following three issues about the responsibility for the accident:

"1. Whether the accident occurred due to rash and negligent driving of the driver of the lorry bearing No.ATV 7458?

2.

To what compensation the petitioners are entitled and from whom?

3. To what relief?"

Later, the Tribunal also framed the following additional issue:

"Whether there is violation of policy terms and conditions?"

7. During enquiry, petitioner No.1 examined himself as P.W.1 besides examining an eyewitness as P.W.2 and marked Exs.A.1 to A.5; whereas, on behalf of respondent No.2-Insurance Company, R.Ws.1 and 2 were examined and Exs.B.1 to B.3 were marked.

8. On appraisal of evidence on record, the Tribunal on issue No.1, recorded a finding that due to rash and negligent driving of the driver of the lorry, the accident had occurred.

Thereafter, the Tribunal taken up discussion on additional issue and recorded a definite

finding in the light of the evidence of R.Ws.1 and 2 and the entries in Ex.B.3, that there was no violation of terms and conditions of the insurance policy so far as the licence held by the lorry is concerned. On issue No.2, the Tribunal placing reliance on decisions of this Court in United India Insurance Company, Hindupur v.

Shekamma and others[1], New India Assurance Co., Ltd., v. Anasurya and others[2] and yet another decision i n National Insurance Co., Ltd., v.

Bommithi Subbayamma and others[3] and examining the documentary evidence through Exs.A.1, A.2 and A.5 and the evidence of R.W.1, recorded a finding that the insuredrespondent No.1 did not pay premium for coverage for driver, cleaner and for coolies and, therefore, declined to fasten liability on the Insurance Company. So far as determination of compensation is concerned, basing on the evidence of P.W.2, taken notional income of Rs.15,000/- per annum, deducted 1/3rd therefrom, contribution at Rs.10,000/- per annum, and since the deceased was 20 years old in view of the evidence available on record, multiplier factor '17' was applied and arrived the loss of dependency at Rs.1,70,000/-. Besides the same, the Tribunal also granted Rs.5,000/- towards loss of consortium and Rs.2,000/- towards funeral expenses, making a total sum of Rs.1,77,000/- with interest at 6% per annum fastening liability on respondent

No.1-owner of the accident vehicle alone by referring to the decision of this Court in New India Assurance Company Limited v. Lodya Shankar and another[4]. 9 .

It is the aforesaid order which is under challenge in the instant appeal contending in the grounds that the Tribunal went wrong in exonerating respondent No.2-Insurance Company despite the fact that the evidence on record would clearly prove that the deceased was one of the coolies engaged for loading and unloading of the goods in the said lorry and even compensation awarded by the Tribunal is very meager and, therefore, sought to set aside the order and decree and mulct liability on respondent No.2-Insurance Company also by enhancing compensation by granting the balance amount.

10. Heard Sri N. Subba Rao, learned counsel for the appellants-petitioners, and Smt. S.A.V. Ratnam, learned Standing Counsel for respondent No.2-Insurance Company. Appeal was dismissed against respondent No.1-owner for default by the order dated 06.01.2012. 11.

In fact, learned counsel for the appellants concedes that the deceased was travelling in the lorry, which was reflected from the record, as a loading and unloading coolie. Thus, the finding recorded by the Tribunal on the additional issue is well reasoned and

based on proper appreciation of evidence on record. It is clear from Ex.B.1-insurance policy that no premium was paid covering the risk of the driver, cleaner or for coolies and, thus, it is clear that the deceased, besides being an unauthorized passenger travelling in a goods vehicle, certainly, the petitioners are not entitled to seek to fasten liability on respondent No.2-Insurance Company. Hence, finding recorded by the Tribunal cannot be upset. There is no merit in the instant appeal.

12. Accordingly, the instant appeal is dismissed confirming the order passed by the Tribunal in all respects. There shall be no order as to costs. 13.

As a sequel thereto, miscellaneous applications, if any pending in the instant appeal, stand closed.

___________________________ A. SHANKAR NARAYANA, J 30th March, 2016 siva [1] 1994(2) ALT 312 [2] 1990(2) ALT 667 [3] 2005 ACJ 721 [4] 2004(3) ALD 400