THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD M.A.C.M.A.Nos.754 and 757 of 2005 Date:06.12.2010 Between: National Insurance Company Limited, Represented by its Branch Manager, Gudivada, Gudivada, J.C.J.C. .. Appellant/Respondent No.3 And Devari Babu Rao and others .. Respondents COMMON JUDGMENT: These two appeals by the insurer arose out of the awards passed in respect of the same accident and hence they are being heard and decided together at request and with consent. On 23.11.1999, the claimants in M.V.O.P.No.174 of 2000 and M.V.O.P.No.162 of 2001 on the file of the Motor Accidents Claims Tribunal-cum-VI Additional District and Sessions Judge (Fast Track Court), Krishna District at Machilipatnam, were travelling in a Mini Lorry bearing No.AP-16V-6242 towards Avanigadda. The claimants in both the cases paid Rs.50/- each to the driver for carrying four bags of snails each in the vehicle and they were travelling in the vehicle as owners of the goods. The claimants claim that the first respondent/driver in both the cases drove the Mini Lorry rashly and negligently, on which it turned turtle near Lakshmi Talkies, Avanigadda and both the claimants claimed to have received grievous injuries and to have been immediately treated at the Government Hospital in Avanigadda. The police were stated to have registered Crime No.148 of 1999 of Avanigadda Police Station and the claimant in M.V.O.P.No.174 of 2000 claimed that he was referred to University General Hospital in Vijayawada, where he underwent surgeries for the fracture of pelvis and rupture of urethra and again underwent surgery at Pinnamaneni Poly Clinic spending Rs.1,00,000/- towards treatment and surgeries. Hence, he claimed a compensation of Rs.1,50,000/- from the driver, owner and insurer of the vehicle. The claimant in M.V.O.P.No.162 of 2001 claimed to have received several injuries for which he was treated for ten days in the Government Hospital and later in a private hospital. He claimed to have incurred huge expenditure for medicines, transportation and extra nourishment and hence, he claimed a compensation of Rs.75,000/- against the same respondents jointly and severally. In both the claim petitions, the driver and owner of the vehicle remained ex parte and the insurer alone contested the claims denying the allegations of the claimants and not admitting any rash and negligent driving by the first respondent or the first respondent being the authorized driver or the first respondent having any valid driving licence or any valid insurance policy being subsisting at the time of the accident. In both the claims, the Tribunal framed issues about the responsibility for the accident and the entitlement of the claimants to compensation. In M.V.O.P.No.174 of 2000, the Tribunal examined PWs.1 and 2 and RW.1 and marked Exs.A1 to A12 and Ex.B1. It rendered the award impugned in M.A.C.M.A.No.757 of 2005, firstly accepting the evidence of injured - PW.1 corroborated by Ex.A1 - copy of First Information Report about the rash and negligent driving of the vehicle by the first respondent being the cause for the accident. The non-examination of the first respondent and the absence of any evidence for the insurer to contradict the claims of PW.1 led the Tribunal to believe PW.1 on this aspect. In assessing the compensation jointly and severally liable to be paid by all the three respondents, the Tribunal preferred the evidence of PW.1 than the evidence of RW.1 - the Branch Manager of the insurer and concluded that the evidence of PW.1, that he was carrying five bags of snails in the lorry, was corroborated by Ex.A1 - copy of First Information Report being the earliest version. The Tribunal, hence, concluded that the claimant was not an unauthorized passenger and referring to Exs.A4 and A8 – medical certificates, Ex.A9 - bunch of medical bills, Ex.A2 – discharge summary sheet, Ex.A3 - certificate issued by Pinnamaneni Poly Clinic, Vijayawada, Exs.A10 and A11 - medical bills and Exs.A5 to A7 - prescriptions and discharge note etc, the Tribunal concluded that the claimant suffered a fracture to his pelvis and pubic bones and also suffered an injury due to rupture of urethra. The Tribunal accepted the evidence of PW.2 - doctor, who treated the claimant - PW.1 and considered that the claimant is entitled to Rs.20,000/- towards surgery, Rs.10,000/- towards fracture of pelvis bone, Rs.6,000/- towards loss of income, Rs.10,000/- towards pain and suffering and Rs.4,000/- towards simple injuries, making a total compensation of Rs.50,000/-. The Tribunal awarded interest at 6% per annum on the same and also proportionate costs. In M.V.O.P.No.162 of 2001, the Tribunal examined PW.1 and RW.1 and marked Exs.A1 to A5 and Ex.B1. Like in the other case, the Tribunal rendered the award impugned in M.A.C.M.A.No.754 of 2005 accepting the evidence of the injured - PW.1 corroborated by Ex.A1 - copy of the charge sheet filed by the police against the first respondent and Ex.A5 – copy of First Information Report, as probablising the rash and negligent driving of the vehicle by the first respondent being the cause for the accident. The Tribunal also rejected the contention that the claimant was an unauthorized passenger on similar reasons as in the other case and with reference to Ex.A2 - wound certificate and Ex.A4 - bunch of medical bills, apart from the evidence of PW.1 - the injured, the Tribunal considered it appropriate to grant Rs.2,000/- for each simple injury or Rs.14,000/- in total, apart from Rs.7,000/- towards medical expenses, Rs.4,500/- towards loss of earnings and Rs.2,000/- towards pain and suffering, making a total compensation of Rs.27,000/-. The Tribunal awarded interest at 6% per annum and proportionate costs. The insurer challenged the said awards in these appeals, firstly referring to the permission obtained by it under Section 170 of the Motor Vehicles Act in I.A.Nos.114 and 115 of 2004 on 14.06.2004. The insurer contended both the claimants to be unauthorized passengers in the goods vehicle, who boarded the lorry midway in violation of the terms and conditions of the insurance policy absolving the insurer of any liability. The insurer also challenged the appreciation of evidence by the Tribunal on the quantum of compensation also and desired the impugned awards to be reversed. Sri A.Veeraswamy, learned Standing Counsel for the insurer in both the appeals and Sri K.S.R.Hemanth Kumar, learned counsel for the claimant/first respondent in both the appeals, are heard. The respondents 2 and 3 - driver and owner of the vehicle remained unrepresented before this Court also. In both the appeals, the insurer did not challenge the conclusion of the Tribunal about the rash and negligent driving of the first respondent/driver, being the cause for the accident. The existence of a valid and subsisting insurance policy at the time of the accident is also not in dispute. The ownership of the vehicle with the second respondent in the claim petition is also not in question. Therefore, the joint and several liability of all the respondents in both the cases to justly and adequately compensate the claimants cannot be in dispute except, of course, subject to the absence of proof of their being unauthorized passengers in the goods vehicle as contended by the insurer. It should also be noted that the amounts of compensation awarded by the Tribunal to both the claimants are conservative and while the claimant in M.V.O.P.No.174 of 2000 sustained fractures of pelvis and pubic bones and rupture of urethra for which he had to receive treatment at a specialized University General Hospital and later at a private hospital undergoing surgeries, the Tribunal awarded only Rs.20,000/- towards Urethroplasty surgery on the estimate given in Ex.A3 and other sums are towards inevitable medical expenses, attendant charges or extra nourishment or transportation or any other incidental charges. The amounts awarded towards the fracture of pelvis, loss of earnings, pain and suffering and simple injuries are also very restricted and on the basis of the evidence before the Tribunal, no judicial authority could have granted any lesser compensation. Similarly, the claimant in M.V.O.P.No.162 of 2001 had produced medical bills worth Rs.8,000/- and the Tribunal limited itself to grant of Rs.7,000/- and did not grant any other compensation for the other inevitable expenses, apart from medicines, like in the other case. The Tribunal granted only Rs.2,000/- each for the simple injures or Rs.14,000/- in total, Rs.2,000/- towards pain and suffering and Rs.4,500/- towards loss of earnings which with reference to the evidence on record could not have been further lessened. Therefore, though the appellant challenged the quantum of compensation in both the cases, the appeals do not deserve any consideration on the question of quantum. The only point that remains for consideration is whether the claimants have to be considered as unauthorized passengers travelling in a goods vehicle. Even in the earliest version, Ex.A1 - copy of First Information Report in M.V.O.P.No.174 of 2000 which is Ex.A5 in M.V.O.P.No.162 of 2001, it was clearly alleged that load of snails of the claimants was being carried in the vehicle and that the claimants were travelling in the vehicle along with their goods. PW.1 in M.V.O.P.No.174 of 2000 positively deposed on oath before the Tribunal about sitting over the load of snails in the vehicle which claims were found by the Tribunal to have remained uncontroverted in the cross-examination or by RW.1 or by examining the driver/first respondent. In the other case, there is further confirmation of the allegations by the contents of Ex.A1 - charge sheet, apart from similar evidence of injured - PW.1 and the officer of the insurer as RW.1. The conclusions of the Tribunal, which had the benefit of observing the demeanour of witnesses in both the cases, based on broad human probabilities arising out of the material on record cannot be interfered with in these appeals for any strong reason and if it were so, both the claimants cannot be considered to have been unauthorizedly travelling in a goods vehicle. Hence, both the appeals have to fail, but in the circumstances without costs. Accordingly, both the appeals are dismissed without costs. _________________________ G. BHAVANI PRASAD, J 06.12.2010 KH