K. Yesamma and Others vs D.V. Subbareddy and Another

C.Y. Somayajulu, J.—Appellants, who are the wife and parents of Peda Akkaiah (the deceased) who died due to an accident that occurred on 13.4.1996, when he was travelling in the lorry bearing No. ADF 702 belonging to respondent No. 1 and insured with the respondent No. 2, filed a claim petition seeking compensation of Rs. 1,50,000, from the respondents, on the ground that the accident took place due to rash and negligent driving of the driver of the lorry. Respondent No. 1 filed a counter, putting the appellants to proof of the allegations in the petition and contending that since the lorry was insured with respondent No. 2, the compensation payable has to be paid by the respondent No. 2 only. Respondent No. 2 filed a counter putting the appellants to proof of the allegations in the petition. In support of their case, appellants examined two witnesses as PWs. 1 and 2 including appellant No. 1 as PW 1 and marked Exhs. A1 to A5. Respondent No. 1 did not adduce any evidence either oral or documentary. Respondent No. 2 examined one witness as RW 1 and marked Exhs. B1 and B2. The Claims Tribunal held that the accident occurred due to rash and negligent driving of the driver of the lorry and awarded Rs. 50,000 as compensation to the appellants on the assumption that the claim is u/s 140 of the Motor Vehicles Act, 1988 (for short ''the Act''). Dissatisfied with the compensation awarded to them and questioning the assumption of the Tribunal that the claim is u/s 140 of the Act, the claimants preferred this appeal.

The main contention of the learned Counsel for the appellants is that, since the claim petition is filed u/s 166 of the Act, Tribunal was in error in assuming that the claim is u/s 140 of the Act and restricting the compensation to Rs. 50,000 and it ought to have granted the entire amount claimed by the appellants, keeping in view the age and income of the deceased. There is no representation on behalf of the respondents though notices of the appeal were served on them.

Since the respondents did not prefer any appeal or cross-objections, questioning the finding of the Tribunal that the accident occurred due to rash and negligent driving of the driver of the lorry and since the Claims Tribunal committed an error in observing in para 1 of its award that the claim is u/s 140 of the Act, when in fact the claim is made u/s 166 of the Act, the point for consideration in the appeal is to what compensation are the appellants entitled to and from whom?

The evidence of PW 1 is that he, the deceased and others after attending the work of sugarcane cutting as coolies were proceeding from Eluru to Guntur with their implements and utensils in the lorry by each of them paying Rs. 25 to the driver of the lorry and that the deceased who was aged 32 years is earning Rs. 90 per day as coolie. Since PW 2 did not speak anything about the age and earnings of the deceased his evidence is not relevant for deciding this appeal.

Since the deceased was an agricultural coolie, coming from a rural area and since the allegation in the F.I.R. Exh. A1, shows that deceased and others moved out of the village for doing agricultural coolie work and since the accident occurred in the year 1996, the average earnings of the deceased can be taken as Rs. 900 p.m. at Rs. 30 per day and so his contribution to the appellants can be taken as Rs. 600 p.m. at Rs. 7,200 p.a.

Since the post-mortem examination report of the deceased, Exh. A4, shows that he was aged about 32 years and since the evidence of PW 1 also is that the deceased was aged about 32 years, the age of the deceased can be taken as 32 and so the appropriate multiplier would be 16. So the appellants are entitled to Rs. 7,200 x 16 = Rs. 1,15,200 towards pecuniary damages.

Since the appellant No. 1 lost her husband, she is entitled to Rs. 15,000 towards loss of consortium. As per the ratio in Yerra Varalakshmi v. M. Nageswara Rao 1988 ACJ 354 (AP), appellants are entitled to Rs. 15,000 for non-pecuniary damages.

Thus, the appellants are entitled to Rs. 1,15,200 + Rs. 15,000 + Rs. 15,000 : Rs. 1,45,200 as compensation for the death of the deceased.

The Tribunal, on the basis that the deceased was travelling with his goods in the lorry held that the insurer also is liable to pay the compensation payable to the appellant, obviously, without taking into consideration the definition of ''goods'' in the Act and Rule 252 of A.P. Motor Vehicles Rules, 1989 (for short, ''the Rules'') which reads:

Carrying of persons in goods carriage.--(1) No person shall be carried in the cab of a goods vehicle beyond the number for which there is seating accommodation at the rate of 284 millimetres measured along the seat, excluding the space reserved for the driver for each person and not more than (seven persons in all) shall be carried in any goods vehicle.

(2) No person shall be carried in a goods vehicle upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle and in no case shall any person be carried in a goods vehicle, in such a manner that any part of his person when he is in sitting position is at a height exceeding 3 metres from the surface upon which the vehicle rests.

(3) No person other than a person connected to the conveyance of goods shall travel in a goods vehicle.

(4) Notwithstanding the provisions of Sub-rule (1) the Regional Transport Authority or the State Transport Authority, may subject to such conditions as it thinks fit allow a large number of persons to be carried in a goods vehicle.

(5) Nothing in this rule shall be deemed to authorise the carriage of any person for hire or reward on any goods vehicle, unless there is in force in respect of the vehicle a permit authorising the use of the vehicle for such purpose, and save in accordance with the provisions of such permit.

Since F.I.R., Exh. A1, shows that the deceased, PW 1 and others numbering 36 boarded on the load of fertilizer bags, being transported in the lorry they must have sat on the fertilizer bags in violation of Rule 252(2) of the Rules. Rule 252(5) of the Rules, prohibits carrying of persons for hire or reward in a goods vehicle, since there is nothing on record to show that respondent No. 1 was having permit to carry 36 persons, as fare paying passengers in his lorry, which was taking a load of fertilizer bags. So this is a case where the driver of the lorry, in violation of the provisions of the Act and Rules, allowed 36 passengers travelling in the lorry, by taking fare from them.

The policy issued by respondent No. 2 admittedly is an Act policy, which does not cover the risk of the passengers travelling in the goods vehicle. So the respondent No. 2 is not liable to pay the compensation payable to appellants. But since the respondent No. 2 did not prefer cross-objections, in respect of the award passed against it for Rs. 50,000, I do not wish to interfere with the award passed by the Tribunal making the respondentNo. 2 liable for Rs. 50,000 and interest thereon. But for the enhanced amount of Rs. 95,200 awarded in this appeal, respondent No. 2 cannot be made liable because the deceased was travelling in a goods vehicle as a passenger in violation of the provisions of the Act and the Rules.

Learned Counsel for the appellants relying on National Insurance Co. Ltd. Vs. Swaran Singh and Others, , contends that respondent No. 2 also should be made liable to pay the entire compensation in the first instance and that it can recover the amount so paid from respondent No. 1. I am unable to agree with the said contention since the decision relates to non-fare paying passengers. In this case the driver of the lorry carrying a load of fertilizers, had in the midway allowed 36 passengers, to board the lorry and allowed them to sit on the load of fertilizers, by taking fare from all of them. It clearly means that the driver of the lorry used it as a stage carriage but not as a goods vehicle and violated the provisions of the Act and Rules and so insurer, respondent No. 2 cannot be made liable for payment of the entire compensation payable to the appellants. But as stated earlier, since the respondent No. 2 did not prefer an appeal or cross-objections, I do not wish to interfere with the award of the Tribunal.

So I hold that the appellants are entitled to a compensation of Rs. 1,45,200 from the respondent No. 1 out of which the liability of the respondent No. 2 as fixed by the Tribunal, is Rs. 50,000. The point is answered accordingly.

In the result, the present appeal is allowed in part and an award is passed for Rs. 1,45,200 in favour of the appellants against respondent No. 1 with interest at 12 per cent per annum on Rs. 50,000 from the date of petition till the date of deposit into Court and with interest at 9 per cent on Rs. 95,200 from the date of award of the Tribunal, i.e., 30.7.1999, till the date of deposit into Court. Appellants are entitled to proportionate costs in the Tribunal. Rest of their claim is dismissed without costs. Respondent No. 2 is jointly and severally liable to pay Rs. 50,000 to the appellants with interest at 12 per cent per annum from the date of petition till the date of deposit and proportionate costs in the Tribunal. From out of the said amount, appellant No. 2 is entitled to Rs. 20,000 and interest thereon, the appellant No. 3 is entitled to Rs. 55,100 and interest thereon and the appellant No. 1 is entitled to Rs. 70,100 and interest thereon. Parties shall bear their own costs in this appeal.