THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO C.M.A.No.2337 OF 2000 ORDER: This is an Appeal preferred under Section 173 of the Motor Vehicles Act, by one of the claimants of the deceased, aggrieved by the improper quantum of compensation awarded in O.P.No.1127 of 1997. O.P.No.1127 of 1997, was originally instituted by three individuals, who claimed to be, the minor daughter and the parents of the deceased Nanavath Pathi. Pursuant to an order passed on 09-09-1999, in I.A.No.940 of 1999, the present Appellant, who claimed that the deceased Nanavathi Pathi was his wife, was permitted to be impleaded as 4th claimant to the said O.P. Respondents 4, 5 and 6 herein are the remaining three claimants in the said O.P.No.1127 of 1997. The 1st respondent was said to be the owner of the offending truck, which caused the motor vehicle accident in question. The 2nd respondent is the policyholder, while 3rd respondent is the insurance company of the offending vehicle. On 20-08-1997, at about 6-30 am, the deceased, along with several others, was traveling in an auto bearing registration No. AP 11 U 3031, driven by, the deceased in another O.P.No.1128 of 1997. The auto was proceeding from Hyderabad to Mudigonda. It was stated to be proceeding on the extreme left side of the road. When the auto reached Thakkellapalli Village, situated on Hyderabad-Nagarjunasagar road, a sand laden truck bearing registration No. AP 28 T 4450, which was driven by its driver in the opposite direction rashly and negligently, hit the auto and, thus caused the accident. Five persons, including the deceased Nanavathi Pathi and the driver of the auto, died in the said accident. Three others have sustained injuries. Hence, a batch of O.Ps. have been instituted seeking various amounts as compensation for the loss of life or injuries caused in the accident, as the case may be. All the said O.Ps. have been clubbed and tried together by the Motor Accident Claims Tribunal-cum- Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad, (‘the Tribunal’, for short) and decided by the common judgment rendered on 25-10-1999. The 3rd respondent insurance company contested these O.Ps. The plea raised by them is that the accident has been caused not due to the rash driving of the driver of the truck, but because of the fault of the driver of the auto, who lost control over his vehicle, because 13 persons were found traveling therein, including three children. It was further pleaded that the transfer of ownership between 1st and 2nd respondents has not been notified during the currency of the insurance policy – Ex.B-1, and hence, the insurance company is not liable to indemnify the current owner of the said vehicle. Further, it was contended that the claimants have failed to establish the income of the deceased. The Tribunal, upon analysis of the evidence brought forth before it, by examining the eye-witnesses to the accident and also placing reliance on Ex.B-2 Panchanama of the accident site, arrived at a finding that it is the sand laden truck that caused the accident. The Tribunal has also carefully compared the facts, as narrated by PWs 1 and 2 with the contents of Exs.A-1 and A-2 – the FIR lodged at the Police Station Yacharam and the charge sheet filed by the Inspector of Police of Ibrahimpatnam, after investigation, in the criminal case, and also noticed the findings recorded by the Motor Vehicle Inspector in his report Ex.A-3, from the visible marks of impact recorded on the right side bumper, parking lights and mud-guard of the offending truck, and then came to the conclusion that it is the truck bearing registration No. AP 28 T 4450, which has caused the accident in question, all due to rash driving. The finding of fact recorded by the Tribunal is based upon a correct analysis of the facts spoken to by PWs. 1 and 2. They have clearly pointed out that from a distance ahead they could observe that the truck coming in the opposite direction was driven very rashly and hence, they have cautioned the driver of the auto to be careful. In view of the same, the auto driver has taken his vehicle by swerving to the extreme left hand margin of the road. At the point of impact, the clear width of the road was only 12 feet, leaving a 3 feet road margin. Obviously, the truck driver, could not properly anticipate the safe space available for his truck to pass by. The Tribunal, therefore, had correctly arrived at the finding that it is the truck, which was driven rashly by its driver that caused the accident. Particularly, in the absence of any contra material or evidence, this finding of fact is not liable to be upset. The driver of the offending truck has not been chosen to be examined before the Tribunal. He is the best person, who could have narrated the true and correct facts. Since, he has not been examined, the Tribunal, based upon the evidence available before it, had recorded a correct finding of fact as to the nature and cause of the accident. That leaves two questions to be determined: (1) as to the quantum of compensation; and (2) as to whether the insurance company is liable to make good and indemnify the loss or damage of the owner of the vehicle in spite of lack of intimation to it of the transfer of ownership of the vehicle. At this stage, it will be appropriate to notice the legal principle involved with regard to the question whether in the absence of any intimation of transfer of ownership, as is required under Section 103A of the Motor Vehicles Act, the liability of the insurer to pay compensation to the third party ceases? Such a question has fallen for consideration before the Supreme Court in G. GOVINDAN v. NEW INDIA ASSURANCE COMPANY LIMITED AND OTHERS[1], wherein it was settled that the liability of the insurer to pay compensation to the third party in the absence of any intimation of transfer of the vehicle to the transferee would continue and would not cease. It was held in the said case that since, the insurance against the third party is compulsorily thrust by the Motor Vehicles Act, and when once the insurance company had undertaken liability to third party incurred by the persons specified in the policy, the third party’s right to recover any amount is not affected by virtue of the provisions of the Act or by any condition in the policy. In fact, the same question was once again considered by the Supreme Court in RIKHI RAM AND ANOTHER v. SMT. SUKHRANIA AND OTHERS[2]. The Supreme Court while reiterating the principle in G. GOVINDAN’s case ( cited 1 supra), has concluded the entire issue as under: “6. On an analysis of Ss.94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract, cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.” Therefore, in the instant case, the transfer of ownership of the offending truck by and between respondents 1 and 2, even if the necessary intimation is not passed on to the insurer, is of no avail to the third respondent insurer. All the claimants are, therefore, entitled to recover the compensation as determined by the Tribunal, from the insurer. Incidentally, it was also contended that since the auto driver was guilty of carrying more number of passengers in his vehicle than is permitted, the insurance company should also be absolved of its obligations in view of the breach of the condition of the permit by the auto driver. It would be appropriate to notice that in terms of Clause (c) of subsection (2) of Section 149 of the Act, one of the defenses available to an insurer is that the vehicle in question has been used for a purpose not allowed by the term subject to which it was used. The question as to whether breach of the condition of the permit - not to carry more than three passengers in an auto - would amount to a breach of purpose for which the vehicle has been permitted to be used, has fallen for consideration of the Kerala High Court and the Bombay High Court. Both these High Courts have clearly held that the breach of a condition of the permit is not the same thing as a breach of the purpose for which it was issued. The contravention of one of the conditions of the permit does not amount to a contravention of the purpose for which the permit is issued. The Andhra Pradesh High Court has also taken the same view in KANNEKANTI VARAMMA v. PULI RAMAKOTAIAH[3] and in SRIRAM SUBRAHMANYAM AND OTHERS v. S. MOHAMMED RIYAZ AND ANOTHER[4], that the purpose for which a permit has been accorded to a vehicle is clearly different from the conditions imposed or contained in such a permit. If a motor vehicle is used for a different purpose than for which it was permitted, then, perhaps, a valid defense to resist the claim can arise to an insurer. Violation of a condition of a permit cannot be construed to be an integral part of the purpose for which the permit was issued to the vehicle in question. Therefore, violation of a condition contained in the permit of the vehicle for its use does not amount to a breach of the condition of the policy of the insurance. Therefore, I respectfully subscribe to the same view that by carrying more number of passengers in the auto than is permitted, the contract of insurance between the 3rd respondent and the owner of the vehicle does not cease to get attracted. This leaves us with the only question relating to the amount of compensation to be awarded. The claimants have laid a claim for a sum of Rs.3,00,000/-. The claimants have solicited special damages at Rs.10,000/-, under the special head of transportation to hospital and to the cremation ground. A sum of Rs.5,000/- towards expenses for cremation and obsequies; and a sum of Rs.2,000/- towards damage to the clothing. The Tribunal has awarded a sum of Rs.3,000/- under all the three heads noted supra. This amount of compensation awarded by the Tribunal appears to be realistic and may not warrant any interference. A sum of Rs.20,000/- was claimed under the head of general damages and under the sub head pain and suffering. When the death was recorded as instantaneous, the question of compensating towards pain and suffering on that count does not arise. Under the sub head loss of estate, a sum of Rs.25,000/- and towards loss of earning and dependency, a sum of Rs.2,38,000/- has been claimed. It was not in dispute that the deceased was aged about 25 years. She was said to be working as a manual labour and earning a sum of Rs.3,000/- per month at the rate of Rs.100/- per day. The Tribunal has reckoned the monthly earnings of the deceased to be Rs.1,000/- and deducting 1/3rd thereof, has worked out her monthly contribution to be Rs.650/-. Nowhere it was disputed that at the time of the accident, the rate of daily wages was not Rs.100/-. It, therefore, would not be improper to imply that the daily wages could be ranging between Rs.75/- to Rs.100/- per day. On an average, even if 20 days were taken to be employable working days per month, the earnings of the deceased could not have been less than Rs.1,500/- per month. Even assuming that 1/3rd thereof would have been spent by the deceased on herself, her monthly contribution to the family could be taken to be Rs.1,000/- and on that basis, the annual contribution should have been taken as Rs.12,000/- instead of Rs.7,800/- taken by the Tribunal. If Rs.12,000/- has been taken as the annual contribution of the deceased, who was only 25 years, the amount of compensation should have been arrived at Rs.2,16,000/- as against Rs.1,40,400/- worked out by the Tribunal. I, therefore, consider it appropriate that the amount of compensation on this count should be increased to Rs.2,16,000/- as against Rs.1,40,400/- awarded. This amount of compensation has essentially been divided by the Tribunal into two parts. The original claimants 2 and 3 – respondents 5 and 6 herein, who were said to be the parents of the deceased, pleaded that the deceased has been deserted by her husband – the appellant herein. But however, without deciding that question the Tribunal has apportioned a sum of Rs.63,400/- and almost by identical proportions, between the two parents of the deceased and the appellant husband, were awarded almost equal amounts. The other portion has been awarded to the 1st claimant – the six year old minor daughter of the deceased, who is the 4th respondent herein. Therefore, even the additional amount of compensation now awarded, the appellant and the respondents 5 and 6 will additionally receive a further sum of Rs.15,000/- each, while the balance amount of Rs.35,600/-, would go to the 1st claimant – minor daughter of the deceased, who is the 4th respondent herein and the said amount will lie in an interest bearing fixed deposit, in any of the Nationalised Banks, till such time she attains the age of majority. She will be entitled to be paid, only the interest earned thereon, till such time, she attains the age of majority. Sri Sudhakar Reddy, learned counsel appearing for the appellant has also raised a plea that as per Exs.A-10 and A-11, postmortem examination report, the deceased was found to be in the family way; she was said to be carrying a six-month old foetus and hence, compensation ought to have been awarded to this unborn child. He commended, for acceptance, the judgment rendered by the Karnataka High Court in DIVISIONAL CONTROLLER, B.T.S. DIVISION, KARNATAKA STATE ROAD TRANSPORT CORPORATION v. VIDYA SHINDHE AND ANOTHER[5]. It will be appropriate to notice that in Vidya Shindhe’s case (cited 5 supra), the injured claimant, who was similarly carrying a foetus, had been rushed to undergo an emergency surgery for foetus distress and gave birth to a male child, who has survived for two days before dying, ultimately. In those set of circumstances, the learned Judge had concluded the issue in the following manner: “………….. Though there is no direct impact betweenthe vehicle and the baby, since the baby had received injuries while in the womb, this court has to hold that there is a nexus between the accident and the cause of death of the child…………….” As could be seen from the above case, the baby has survived the accident, but however, succumbed later on to the injuries sustained in the accident. In the instant case, the deceased was carrying a six-month old foetus, which, in normal circumstances, would have taken her some other time to deliver. Therefore, I do not find that the fact situation prevailing in this case, which clearly demonstrated that the victim has succumbed to injuries instantly, would lend support to any such element of compensation to be paid to the appellant herein. To the extent of enhancing the compensation amount, indicated supra, the Appeal is allowed. No costs. --------------------------------- Nooty Ramamohana Rao, J mrk 30th December 2009 [1] (1999) 3 SCC 754 = 1998 AIR SCW 1077 [2] AIR 2003 SC 1446 [3] 1989 (3) ALT 49 [4] 2003(5) ALD 69 [5] 2005 ACJ 69