IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE P.SWAROOP REDDY CIVIL MISCELLANEOUS APPEAL NO : 4046 of 2003 (Appeal under Section ____ against the order/decree in OP no. : 864 of 1998 dated 11/10/2002 on the file of the court of I Additional District Judge, Nizamabad) Between: The New India Assurance Co.ltd. Divisional Manager, Divisional office Opp: Z.P.office, Subashnagar, Nizamabad. ..... APPELLANT AND 1 Palle Hanumavva w/o Durgaiah r/o Mangalpet village, narayankhed mandal, Medak District. 2 Palle Shivavva d/o late Sailoo r/o Mangalpet village, narayankhed mandal, Medak District. 3 Mohd Chand Pasha s/o M.A.Khayyum r/o 15-1-196, Feelkhana, Hyderabad. .....RESPONDENT(S) Counsel for the Appellant: MRS.A.JAYANTHI Counsel for the Respondent No.: MR.P.RADHIVE REDDY The Court delivered the following JUDGEMENT: PSR, J. C.M.A.No. 4046 of 2003 Judgment: This appeal is filed against the order of the learned Motor Accidents Claims Tribunal-cum-Additional District Judge, Nizamabad, in O.P.No. 864 of 1998. The insurance company is the appellant herein. 2. The facts are as follows: As per the averments in the petition on 8.8.1998, the deceased, P. Sathamma was traveling in lorry bearing No. AP-9U-2595 from Narayankhed towards Birkur side, as a labourer of the first respondent and at about 12-00 noon, when the lorry reached near Rampur village shivar, on Pitlam to Banswada road, the driver of the lorry drove it in a rash and negligent manner, in high speed and lost control over it, due to which the lorry turned turtle and fell into river. On account of that the deceased sustained crush injuries and died and some other labourers in the lorry also sustained injuries. The deceased was earning Rs.3000-00 per month. The petitioners are the legal representatives of the deceased – the first petitioner being mother and the second petitioner being the daughter. Though the petitioners calculated the claim for a total compensation of Rs.12.90 Lakhs, but restricted their claim to Rs.3.00 Lakhs only. 3. First respondent – the owner of the vehicle remained ex parte. The second respondent – Insurance Company filed its counter denying the allegations made in the petition and also denying its liability as a whole. 4. On the basis of the above pleadings, the following issues are settled for trial: 1. Whether the accident was due to the rash and negligent driving of the lorry bearing No.AP-9U-2595 by its driver only? 2. Whether the petitioners are entitled for compensation. If so to what amount and from which of the respondents? 3. To what relief? 5. In support of their case, the petitioners examined PWs-1 and 2 and got marked Exs A-1 to A-5. On their behalf, respondents got examined RW-1 and marked Ex B-1 copy of the policy. On the basis of the material on record, the learned trial judge granted compensation of Rs.2.31 Lakhs. 6. Now the learned counsel for the appellant contends that the deceased was traveling as a passenger in the lorry, but not as a labourer in contravention of the terms and conditions of the policy and as such the insurance company is not liable. It is also contended that the compensation awarded, including the rate of interest is on high side. On the other hand the learned counsel for the respondents- petitioners contends that the deceased was, in fact, traveling as a labourer in the lorry; absolutely there is no material to show that the deceased was traveling in the lorry as a passenger and that the compensation awarded is appropriate. 7. Now, the questions that arise for consideration are: i) Whether there was any violation of the terms and conditions of the policy? ii) Whether the deceased was traveling as a passenger in the lorry, as such there is violation of the terms of the policy. 8. The learned counsel appearing for the appellant relied on Ex A- 1 in support of his contention that the deceased was traveling as a passenger in the lorry. The author of the FIR, Pisike Kistaiah stated that he along with some other passengers boarded the lorry; but he never stated that the present deceased also boarded the lorry along with him, as a passenger. As contended by the learned counsel for the respondents-petitioners the deceased might have already there in the lorry, as a labourer even before the author of Ex A-1 boarded the lorry along with some others as passengers. The evidence of PW-2 shows that himself and the deceased were traveling as labourers in the lorry. Learned counsel for the appellant contended that the evidence of PW-2 cannot be relied on as it is not totally consistent with the other case of the respondents-petitioners. 9. There is absolutely no material to show that RW-1 was traveling as a passenger in the lorry. RW-2 in his evidence has stated that the deceased along with other persons were traveling as passengers in the lorry. In the cross examination RW-1 he has stated that he was not an eyewitness to the occurrence. As per the charge sheet, the profession of the deceased is shown as Labourer. Thus, RW-1 is not an eyewitness to the incident. It is not known as to on what basis he stated that the deceased was traveling as a passenger in the lorry. It is the case of the petitioners that the deceased was traveling as a labourer in the lorry and the same is supported by the evidence of PW-2, which can be accepted. Therefore, the finding of the court below cannot be said to be erroneous. As such there is no question of the appellant-insurance company being not liable for compensation. 10. As far as the quantum is concerned, as the deceased was traveling as a labourer in the lorry, the compensation amount of Rs.2.31 Lakhs awarded cannot be said to be on high side. However, the rate of interest of 9% per annum can be said to be on somewhat high side. As such the rate of interest is reduced to 7.5% per annum. 11. In the result, the appeal is dismissed by confirming the order and decree of the lower court. However, the rate of interest is reduced from 9.0% to 7.5% per annum. No costs. _______________________ P. SWAROOP REDDY, J. June 22, 2010. *BVS