Judgment:
G.V. Seethapathy, J.
1. (i) These two appeals arise out of the order dated 1.2.2001 in O.P. No. 574 of 1995 on the file of the Motor Vehicle Accidents Claims Tribunal-cum-Additional District Judge, Mahaboobnagar District, wherein the claim for compensation was allowed in part awarding a compensation of Rs. 65,000/- with interest at 12% p.a., from the date of the petition.
(ii) As the two appeals arise out of the same impugned order and are interconnected, they are being disposed of by this Common Judgment.
2. Respondents 2 and 3 in C.M.A. No. 3096 of 2005, who are claimants, filed a claim petition before the Tribunal seeking a compensation of Rs. 2,00,000/- for the death of one Balusu Rajesh, son of the first claimant, in a motor accident that occurred on 23.1.1995. According to the claimants, on that day while the deceased and his uncle Eswaraiah were returning from Jadcherla in a lorry bearing No. AP-28-T-1114 to reach Hyderabad along with 50 kgs rice bag, four folding chairs, one trunk box and one folding table etc., paying a fare of Rs. 145/- the lorry turned turtle near a bridge in between Lingareddigudem and Chandrayan Gudem due to rash and negligent driving by the driver, as a result of which, the lorry fell in a road side ditch resulting in the death of the deceased on the spot. The police, Shadnagar registered a case in Crime No. 19 of 1995. It is further pleaded that the deceased was aged about 19 years and was working as a private servant in Vishweshwara Rice Mill at Kothapeta, Rangareddy District and drawing Rs. 1,500/-per month.
3. The 1st respondent in CM.A. No. 3096 of 2005, who is the owner of the lorry, remained ex parte before the Tribunal. The appellant herein, who is the insurer (2nd respondent before the Tribunal) filed a counter denying the liability to pay the compensation and further contending that the deceased was an unauthorized passenger in the goods vehicle and so the insurer is not liable to pay the compensation.
4. On the strength of the evidence, the Tribunal framed the following issues:
(1) Whether there occurred an accident on 23.1.1995 at about 5.30 a.m., on bridge No. 43/1, N.H. No. 7 in between Lingareddyguda and Chandrayanguda due to rash and negligent driving of lorry bearing No. AP28.T.l 114 by its driver and whether it resulted in causing the death of Balusu Rajesh?
(2) Whether the petitioners are entitled to receive any compensation from the respondent, if so to what amount and from whom?
(3) To what relief?
5. P.Ws. 1 to 4 were examined and Exs. A1 to A5 were marked on behalf of the claimants. R.W.1 was examined and Ex. B1 was marked on behalf of the respondents.
6. On a consideration of the evidence on record, the Tribunal gave a finding on issue No. 1 that the accident occurred due to rash and negligent driving of the lorry by its driver and on issue No. 2, the Tribunal held that the claimants are entitled for a compensation of Rs. 65,000/-. Accordingly, an award was passed for the said amount with interest at 12% per annum from the date of the petition. Aggrieved by the said award, the insurer preferred C.M.A. No. 3096 of 2005. Being not satisfied with the quantum of compensation that was awarded by the Tribunal, the claimants filed C.M.A. No. 1470 of 2001 seeking enhancement thereof.
7. Arguments of the learned Counsel for the appellants and the respondent are heard. Records are perused.
8. The points, which arise for consideration in this appeal, are:
(1) Whether the compensation awarded by the Tribunal needs to be enhanced?
(2) Whether the appellant-insurer is liable to pay the compensation?
9. Point No. 1:
The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the lorry by its driver is not seriously challenged. Even otherwise, the evidence of P.W. 2 and the contents of Ex. A4-FIR goes to show that the driver of the lorry was at fault. The finding of the Tribunal in that regard does not call for any interference.
10. According to P.W. 1, the first claimant, the deceased was a clerk in Vishweshwara Pice Mill and earning Rs. 1,500/- per month and was aged about 19 years by the date of his death. Admittedly, the deceased died unmarried. P.W. 1 filed Ex. A1 salary certificate showing that the deceased was earning Rs. 1,500/- per month. However, the employer, who issued Ex. A1 salary certificate, is not examined in order to prove its contents. In the absence of such evidence, the Tribunal has declined to place reliance on Ex. A1. However, the Tribunal fixed the income of the deceased at Rs. 900/- per month and after deducting 1/3rd thereof towards the personal expenses, estimated his contribution to the family as Rs. 600/- per month and applying the multiplier of '8' suitable to the age of the first claimant, estimated the loss of dependency at Rs. 57,600/-.
11. Even assuming that the deceased was non-earning member, notional income of Rs. 15,000/- per annum has to be taken into consideration as per the II schedule of the M.V. Act. As the deceased died unmarried, it is appropriate to take the age of the 1st claimant, who is the mother, into consideration. As on the date of the accident, she was admittedly aged about 50 years inasmuch as at the time of giving evidence in the year 2000, she disclosed her age as 55 years. As per the second schedule, the appropriate multiplier suitable for the age of the 1st claimant, is '11'. Deducting 1/3rd towards personal expenses, the contribution of the deceased to the family can reasonably be estimated at Rs. 10,000/- and applying the multiplier '11' the loss of dependency works out to Rs. 1,10,000/-. The claimants are also entitled for a sum of Rs. 2,500/- towards loss of estate and Rs. 2,000/- towards funeral expenses as per the II schedule of the M.V. Act. Thus, the claimants are entitled for a total compensation of Rs. 1,14,500/-. Accordingly, this point is answered.
12. Point No. 2:
According to the insurer, the deceased was travelling as an unauthorized passenger in the goods vehicle and the risk in respect of such person is not covered by Ex. B-1-policy. It is not disputed that the lorry in which the deceased travelled is a goods vehicle. According to the claimants, the deceased was travelling in the lorry along with his goods viz., 50 Kgs. of rice, four folding chairs, one trunk box and a folding table and he paid Rs. 145/- to the driver as transport charges and so, he was not an unauthorized traveller as alleged by the insurer.
13. P.W. 2, brother-in-law of the deceased, claims that he was present when the deceased boarded the lorry at Jadcherla along with the above said items. In his cross-examination, he admitted that no bill or receipt was obtained in lieu of payment of hire charges of Rs. 145/-. In Ex. A-4-FIR, it is stated that the lorry was loaded with sand and it dashed against a trailor resulting in an accident. In the inquest report Ex. A-5 also, it is stated that the deceased boarded the lorry loaded with sand at Jadcherla to proceed to Hyderabad. It is nowhere stated either in Ex. A4 or inquest report Ex. A5 that the deceased was travelling along with goods as their owner or representative. On the other hand, the averments in Exs. A4 and A5 go to show that the lorry was proceeding towards Hyderabad along NH 7 road with a load of sand and on the way, the deceased boarded the lorry in order to reach Hyderabad. It is very clear from the evidence on record that the deceased was not accompanying any goods, but was only travelling in the lorry as an unauthorized passenger.
14. In New India Assurance Co. Ltd. v. Asha Rani : 2003(1)ALD18 , 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.
It was further held:
The applicability of decision of this Court in Mallawwa (Smt.) and Ors. v. Oriental InsuranceCo. Ltd. and Ors. : AIR1999SC589 , in this case must be considered keeping that aspect in view. Section 2(35) of 1988 Act does not include passengers in goods carriage whereas Section 2(25) of 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of the 'goods vehicle' in 1939 Act and 'goods carriage' in 1988 Act is significant By reason of the change in the definitions of the terminology, the Legislature intended that a goods vehicle could not carry any passenger, as the words 'in addition to passengers' occurring in the definition of goods vehicle in 1939 Act were omitted. Furthermore, it categorically states that 'goods carriage' would mean a motor vehicle constructed or adapted for use 'solely for the carriage of goods'. Carrying of passengers in a 'goods carriage', thus, is not contemplated under 1988 Act.
15. In a recent decision in National Insurance Co. Ltd. v. Bommithi Subbayamma and Ors. : (2005)12SCC243 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.
16. In a recent decision Deddula Padmavathi and Anr. v. Maddala Srinivasa Rao and Anr. : 2004(5)ALD228 , which was a case of the deceased carrying vegetable bags, this Court held as follows:
One or two bags of vegetables being carried by a passenger who boarded the lorry in the midway would not become 'goods' within the meaning of Section 2(13) of the Motor Vehicles Act, 1988 (the Act) because luggage being carried by passengers is not covered by the said definition. The volume and the weight of the bags being carried would have relevance to find out if they are 'luggage' or 'goods' within the meaning ofSection 2(13) of the Act. Words employed in Section 147(1)(b)(i) of the Act, reading 'including owner of the goods or his authorized representative carried in the vehicle' show that the intendment of the Parliament was to cover the risk of the owner of the goods or his authorized representative who actually engaged the goods vehicle for transport of his 'goods' from one destination to another destination, and are not intended to cover persons who board the goods vehicle, carrying 'goods' of some others, in the midway with some luggage being carried with them.
17. In view of the principles laid down by the Apex Court in the above decisions and the deceased being unauthorized passenger in a goods vehicle, the appellant-insurer is not liable to pay the compensation inasmuch as the risk in respect of such person is not covered by Ex. B-1-policy. In fact, the evidence on record does not disclose that the deceased was transporting any goods or was accompanying them in the lorry at the time of accident. Even assuming for a moment that the deceased was carrying such goods, he does not come within the meaning of the owner of the goods or authorized representative so as to cover the risk in the light of the decision of this Court as referred to supra.
18. The deceased has admittedly not engaged the lorry for transporting his goods and he merely boarded the lorry while it was proceeding from Jadcherla towards Hyderabad along with a load of sand.
19. Under the above circumstances, the appellant-insurer cannot be fastened with any liability to pay the compensation as the risk in respect of unauthorized passenger is not covered by the policy. Though the insurer has taken a specific plea in the counter and also adduced evidence in that regard, the Tribunal has not adverted to the said aspect and held that the insurer is liable, merely on the ground that the vehicle is covered by Ex. B1, policy. In the light of the decisions cited, the finding of the Tribunal fastening liability on the insurer cannot be sustained.
20. In the circumstances and for the reasons stated, the claimants are held entitled for a total compensation of Rs. 1,14,500/-with interest at 12% per annum from the date of petition on the original amount awarded by the Tribunal and 7.5% per annum on the enhanced amount from the date of filing of the appeal. The claimants are, however, entitled to recover the said amount of compensation with interest, only from the owner of the vehicle but not the appellant-insurer.
21. The award, dated 1.2.2001 passed by the Tribunal in O.P. No. 574 of 1995 is modified accordingly.
22. In the result, both the appeals C.M.A. Nos. 3096 of 2005 and 1470 of 2001 are allowed in part to the extent indicated above. No order as to costs.