IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIETH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.1231 of 2007 Between: The New India Assurance Company Limited .. Appellant AND Kaya Dalamma & 5 others .. Respondents AND X.O.B.J.M.A.C.M.A.(SR).No.22098 of 2007 Between: Kaya Dalamma & 4 others .. Cross Appellants/Respondents AND The New India Assurance Company Limited .. Respondents/Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.1231 of 2007 AND X.O.B.J.M.A.C.M.A.(SR).No.22098 of 2007 COMMON JUDGMENT: The civil miscellaneous appeal and cross objections are directed against the award in M.V.O.P.No.342 of 2000, on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Srikakulam, dated 02.12.2005. 2. The factual background for the appeal is that Kaya Appanna Reddy, aged 55 years, was working as a driver on tractor-trailer Nos.A.P.30 T 2728 and A.P.30 T 2630 under the first respondent to the claim and he was earning Rs.2,000/- per month. On 12.02.1999, near Karthali Tank, the deceased, driving the tractor-trailer, tried to avoid hitting a jackal, but the vehicle turned turtle killing Kaya Appanna Reddy on the spot. Kanchili Police registered Crime No.23 of 1999 and closed the case as abated. The wife, three sons and daughter of Kaya Appanna Reddy filed the petition for a compensation of Rs.4,00,000/- from the owner and insurer of the tractor-trailer under Sections 163-A and 166 of the Motor Vehicles Act, 1988 (for short, ‘the Act’). 3. The owner of the vehicle remained ex parte before the Tribunal, while the insurer denied the allegations of the claimants and disputed its liability to pay the excessive compensation claimed. 4. The Tribunal framed issues about the manner of the accident, the entitlement of the claimants to compensation and the quantum thereof and from whom. 5. The Tribunal examined P.W.1 and R.Ws.1 and 2 during the course of enquiry and marked Exs.A-1 to A-4 and B-1 to B-4. 6. The Tribunal rendered the impugned award firstly noting that in a petition under Section 163-A of the Act, proof of a rash and negligent act is not a prerequisite as held in KORE LAKSHMI AND OTHERS VS. M/S. UNITED INDIA INSURANCE COMPANY LIMITED, NIZAMABAD DISTRICT AND OTHERS [2003 (6) ALT 230]. The Tribunal noted the age of the deceased to be 55 years as per Ex.A-2-Post Mortem Certificate and the relevant multiplier was stated by it to be 8 as per the Second Schedule to the Act. The Tribunal, in the absence of any evidence or proof except the oral claims of P.W.1, took the minimum earnings of the deceased as Rs.50/- per day and Rs.1,500/- per month and it deducted 1/3rd of the same towards the personal expenses of the deceased which he would have incurred had he been alive and by calculating the loss of dependency on such factors, the same was calculated at Rs.96,000/-. The funeral and transport expenses were granted at Rs.3,000/- and Rs.15,000/- were awarded towards loss of consortium. Rs.5,000/- towards loss of estate were also awarded and the total compensation of Rs.1,19,000/- was directed to carry interest at 7.5% per annum. The Tribunal also repelled the contention of the insurer about the absence of a driving licence for the deceased as alleged by P.Ws.1 and 2 and Ex.B-3 with reference to the decision of the Apex Court in NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS [2004 (1) ACJ 1] and the Tribunal also noted that the insured was not alleged to have allowed the deceased to drive the vehicle with the knowledge of any defect in the driving licence of the deceased. Therefore, the Tribunal refused to absolve either respondent from the liability. 7. The insurer filed the appeal contending that in the light of the evidence of R.W.2 read with Exs.B-3 and B-4, the driver should have been held to be having no valid driving licence and in any view, the insurer should have been permitted to recover from the insured any amount of compensation paid and interest ought to have been awarded at 7.5% per annum. 8. The claimants in their cross objections were aggrieved by not computing the income of the deceased as Rs.2,000/- per month and in not applying the multiplier 11 applicable to persons upto the age of 55 years as per the Second Schedule to the Act. The loss of estate also should have been compensated at a higher level and, hence, they desire the balance compensation claimed by them to be awarded. 9. Sri B. Devanand, learned counsel for the insurer and Sri A. Rama Rao, learned counsel for the claimants are heard. 10. The points that arise for consideration herein are any absence of liability for the insurer with reference to the driving licence of the deceased and the quantum of just and adequate compensation to which the claimants are entitled. 11. Insofar as the question in issue about the driving licence is concerned, Ex.B-3-Driving Licence was produced by the Road Transport Authority, Ganjam, Chatrapur, Orissa, and the said licence showed that the deceased was having a valid driving licence for driving a tractor on the date of the accident. The licence was specified to be to drive a motor vehicle other than a transport vehicle and the report of the Advocate and Investigator of the insurance company in Ex.B-2 stated that the deceased had a valid driving licence to drive the tractor only. The Junior Clerk of the Road Transport Authority concerned, examined as R.W.2, admitted that there was no separate entry in Ex.B-3 to specify that the driver was authorized to drive a tractor-trailer. Ex.B-3 does not corroborate the claim of R.W.2 that the driver was not authorized to drive a tractor-cum-trailer by Ex.B-3-Driving Licence. The Senior Assistant of the insurer, examined as R.W.1, admitted that tractor and trailer are termed as light motor vehicle and the driver had the driving licence to drive the tractor. From Ex.B-1-Insurance Policy read with such evidence, any violation of terms and conditions of the insurance policy is not deducible and what Ex.B-1 stipulated was only that the person driving should hold an effective driving licence and even a person holding an effective learner’s licence was permitted to drive the vehicle when not used for the transport of passengers or goods at the time of accident. The tractor and trailer were being taken by the deceased at the time of the accident to fetch sugarcane and it was not, in fact, carrying any goods and even assuming that in the event of the vehicle carrying any goods, it could have been considered to be a transport vehicle, the use to which the vehicle was being put at the time of the accident is such as would make it not a transport vehicle for the purposes of the insurance policy. While no material has been placed before the Court to show that the vehicle in question answers the definition of a heavy vehicle as contended in the written statement of the insurer, any knowledge for the first respondent to the claim about any defect in the driving licence of the deceased also could not be presumed or probablised by the material on record. If so, the liability of the insurer and the owner of the vehicle could not have been negatived by the Tribunal and there are no strong grounds to interfere with the award on that ground. 12. Coming to the cross objections, the age of the deceased was mentioned as 55 years in Ex.A-2-Post Mortem Certificate, which was the sole basis for assessment of such age and the assessment by the Medical Expert cannot be considered to be referring to, to be completed years but not completed years. Though the claimants described the deceased to be aged only 50 years in the claim petition, no evidence concerning the age has been placed before the Court by the claimants except Ex.A-2-Post Mortem Certificate and if he has completed 50 years, the appropriate multiplier as per the Second Schedule is 8 as applied by the Tribunal. Even concerning the income, the claimants did not place before the Court what would have been the statutory minimum wages in respect of a driver of a tractor-trailer at about the relevant time nor any material to show the actual payment of such wages by the first respondent to the claim. Except the oral claims of P.W.1, the wife, necessarily tainted with interestedness, there was no dependable material for the Tribunal to accept the claim of earning Rs.2,000/- per month and if the Tribunal, in its wisdom and experience, has considered the probable income to be Rs.1,500/- per month, it requires strong material to interfere with the said assessment in this appeal. Deduction of 1/3rd of the income towards the personal expenses is a statutory mandate under the note to the Second Schedule to the Act and in fact, while awarding Rs.3,000/- towards transport and funeral expenses, Rs.15,000/- towards loss of consortium and Rs.5,000/- towards loss of estate, the Tribunal had exceeded the statutory limits prescribed by the Second Schedule to the Act limiting funeral expenses to Rs.2,000/-, loss of consortium to Rs.5,000/- and loss of estate to Rs.2,500/-, while not permitting any transport expenses. However, the sums awarded need not be disturbed at this distance of time and the interest awarded at 7.5% per annum is not shown to be in any manner deviant from the then prevailing rate of interest. Therefore, the quantum of compensation also needs no disturbance. 13. In the result, both the appeal and the cross objections are dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 30th September, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.1231 of 2007 AND X.O.B.J.M.A.C.M.A.(SR).No.22098 of 2007 Date: 30th September, 2011 KL