Andhra HC (Pre-Telangana)
Sk. Peeramma vs Dama Masthanaiah And Anr. on 2 April, 2007
Equivalent citations: 2007(4)ALD859
JUDGMENT G.V. Seethapathy, J.
1. This appeal is directed against the order dated 19.8.1997 in OP No. 266 of 1992 on the file of the Motor Accidents Claims Tribunal (II Additional District Judge), (for short 'Tribunal') Nellore, wherein the claim of the appellant herein was allowed in part awarding compensation of Rs. 28,500/- with interest at 12% per annum from the date of petition.
2. The appellant herein filed claim application before the Tribunal claiming compensation of Rs. 1,75,000/- on account of the death of her deceased son Sk. Jeelani, who died in a motor vehicle accident that occurred on 13.6.1990. According to the claimant, on that day the deceased was engaged as a coolie in the tractor bearing No. AP 27 T 557 trailer bearing No. AP 27 T 559 belonging to first respondent, and at about 4 p.m. the deceased who was travelling as a coolie in the tractor fell down due to rash and negligent driving of the tractor by its driver and the wheels of the trailer ran over the deceased, who died while undergoing treatment. It is further pleaded that the deceased was aged 20 years and was earning Rs. 30/- per day and the claimant the mother of the deceased, was purely dependent on the income of the deceased.
3. The first respondent-owner of the tractor-trailer remained ex parte. The 2nd respondent-insurer filed a counter before the Tribunal opposing the claim and denying their liability to pay the compensation and further contending that the deceased was travelling as unauthorized passenger in the tractor-trailer and the driver was also not having valid driving licence and so, the insurance company is not liable to pay the compensation.
4. On the strength of the above said pleadings, the Tribunal framed the following issues for trial:
1. Whether the pleaded accident occurred resulting in the death of the deceased and if so was it due to the fault of the driver of first respondent's tractor and its trailer?
2. Whether the tractor and trailer of first respondent stood insured with the 2nd respondent on the date of the accident and if so whether that policy or those policies covered the risk of the deceased?
3. Whether the claimant is in principle entitled to compensation and if so to what amount and from which of the respondents?
4. To what relief?
5. PWs. 1 to 3 were examined and Exs. A. 1 to A. 5 were marked on behalf of the claimant. RW. 1 was examined and Ex. B. 1 copy of the policy was marked on behalf of 2nd respondent.
6. On a consideration of the evidence on record, the Tribunal gave finding on issue No. 1 that the accident occurred due to the rash and negligent driving of the tractor-trailer by its driver; on issue No. 2 the Tribunal held that the claimant is entitled for a total compensation of Rs. 28,500/-. Accordingly an award was passed against the first respondent-owner of the vehicle and the claim as against the 2nd respondent was dismissed on the ground that the deceased was an unauthorized gratuitous passenger and the policy Ex. B. 1 does not cover the risk of such persons. The Tribunal also held that the trailer was not insured with the 2nd respondent and on that ground also, the second respondent is not liable to pay the compensation.
7. Aggrieved by the said award, claimant preferred the present appeal.
8. Arguments of the learned Counsel for the appellant and respondents are heard. Records are perused.
9. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the tractor-trailer by its driver is not assailed by way of any appeal and the said finding has become final. The questions that arise for consideration in this appeal are, whether the claimant is entitled for enhancement of the compensation and whether the 2nd respondent-insurance company is also liable to pay the compensation?
10. The case of the claimant is that her deceased son Sk Jeelani was travelling in the tractor as a coolie engaged for loading and unloading purpose. According to her, the deceased was aged 20 years and was earning Rs. 30/- to Rs. 40/- per day as a coolie. In the cross-examination PW. 1 admitted that there is no document to show that the deceased was earning Rs. 30/- per day. Of course there cannot be any documentary evidence and proof of income of a coolie in the rural areas and in the absence of such evidence, the Tribunal has properly estimated the income of the deceased at Rs. 20/- per day in the year 1990 when the accident occurred. Applying the multiplier of 5 to the age of the claimant, who was aged 55 years, the Tribunal estimated the loss of dependency in a sum of Rs. 24,000/-. Applying the Second Schedule, the Tribunal also awarded a sum of Rs. 2,000/- towards funeral expenses and Rs. 2,500/- towards loss of estate and awarded a total compensation of Rs. 28,500/-. Second Schedule was incorporated in Motor Vehicles Act by way of amendment, with effect from 14.11.1994. The accident in the present case occurred on 13.6.1990. The Second Schedule of the Motor Vehicles Act cannot therefore be made applicable to the present case. The inquest report Ex. A. 2 and charge-sheet Ex. A. 5 show the age of the claimant as 55 years. As per the guidelines set out in 'Bhagawan Das's case 1987 ACJ 1052, the appropriate multiplier for a person aged 55 years is 4.27. Applying the multiplier of 5 as per Second Schedule does not make much of difference insofar as the loss of dependency is concerned. But however awarding only Rs. 2,500/- towards loss of estate, following the Second Schedule, is not justified. The claimant is therefore held entitled to a sum of Rs. 15,000/- towards loss of estate, besides the amount of Rs. 24,000/- towards loss of dependency and Rs. 2,000/- towards funeral expenses, which makes up a total compensation of Rs. 41,000/-.
11. According to the claimant, the deceased was travelling as a coolie engaged for loading and unloading purpose in the tractor-trailer on that day. There is nothing on record to show that the deceased was engaged as a coolie by first respondent for the purpose of loading and unloading. On the other hand, Ex. A. 1 FIR, Ex. A. 2 inquest report and Ex. A. 5 charge-sheet go to show that on that day the tractor-trailer was going to Narwada for Vengamamba Festival and the deceased also boarded the tractor along with others to go there. PW. 1 mother of the deceased however deposed that on that day the deceased was going to Narwada as a coolie engaged for loading and unloading purpose. In view of the documentary evidence available on record to the fact that the deceased and others were going on the tractor to witness Vengamamba Thirunallu at Narwada, the oral evidence of PW. 1 that the deceased was engaged as a coolie by the first respondent and the evidence of PW.3 that the deceased was going to Narwada for loading of seed bags for first respondent cannot be given any weight or credence and obviously the said version is put forward for the first time in the evidence to somehow get the liability fastened on the insurance company.
12. In New India Assurance Co. Ltd. v. Asha Rani , the Apex Court held as follows:
...Keeping in view the provisions of 1988 Act, it can be said that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in the goods vehicle, the insurer would not be liable therefor.
...An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability as provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid.
13. In a recent decision in National Insurance Co. Ltd. v. Bommithi Subbayamma and Ors. , the Apex Court held as follows:
Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of goods vehicle, it was not the intention of the Legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.
14. In United India Insurance Co. Ltd., Guntur v. Smt Dhulipalle Prameela Devi and Ors. , the Division Bench of this Court reiterating the principles laid down in Asha Rani's case and Bommithi Subbayamma's case (stated supra), held that the insurance company is not liable to pay the compensation to the claimant if the insured violated the conditions of the policy.
15. It cannot be disputed that the tractor-trailer is a goods vehicle. As the deceased is found to be a gratuitous and unauthorized passenger in a goods vehicle, the insurance company is not liable to pay the compensation, as the risk in respect of such person is not covered by the policy Ex. B. 1. In view of the above decisions of the Apex Court the finding of the Tribunal that the deceased being gratuitous passenger, the 2nd respondent-insurance company is not liable to pay the compensation, does not call for any interference.
16. Once it is found that the risk in respect of the deceased who was gratuitous passenger in a goods vehicle is not covered by the policy Ex. B. 1 and therefore the 2nd respondent-insurer is not liable to pay the compensation, the question as to whether or not the trailer also required separate insurance is not necessary to be gone into the present case. Irrespective of whether the trailer required to be insured separately or not, the insurer is not liable to pay the compensation, as the deceased is found to be gratuitous unauthorized passenger in a goods vehicle, whose risk is not covered by policy Ex. B. 1.
17. In the circumstances and for the reasons stated above, it is held mat the claimant is entitled for a total compensation of Rs. 41,000/- with interest at 12% per annum on the original amount awarded by the Tribunal from the date of petition and at the rate of 7.5% per annum on the enhanced amount from the date of filing of the appeal, till realisation against first respondent-owner of the tractor-trailer, but not against the 2nd respondent-insurer. The award dated 19.8.1997 passed by the Tribunal in OP No. 266 of 1992 is modified accordingly.
18. In the result, the appeal is allowed to the extent stated above. No order as to costs.