THE HON’BLE SRI JUSTICE V.ESWARAIAH M.A.C.M.A.Nos.1032, 1033, 1166, 1169 and 1281 of 2007 COMMON JUDGMENT: Since similar questions arise for consideration in these appeals, the same are heard and taken up together for disposal by way of common judgment. The Insurance Company filed these appeals aggrieved by the separate orders, dated 25-01-2007, passed by the Motor Accidents Claims Tribunal-cum-III Additional District Judge (Fast Track Court), Anantapur (for short “the Tribunal”), in O.P.Nos.315 of 2005, 382 of 2005, 393 of 2005, 421 of 2005 and 431 of 2005, wherein the Tribunal awarded compensation of Rs.83,000/- in O.P.No.315 of 2005, Rs.2,42,000/- in O.P.No.382 of 2005, Rs.60,000/- in O.P.No.421 of 2005, Rs.3,00,000/- in O.P.No.393 of 2005 and Rs.2,60,000/- in O.P.No.431 of 2005 along with interest at 7.5% per annum. The facts, in brief, are as follows:- On 27-02-2003 at about 1.00 p.m., while the injured persons and the deceased were travelling in Auto bearing No.AP-02V-3500 from Rayadurg to various places and when they reached near 5 km. Stone on Raydurg to Anantapur road near 74 Udegolam village, the driver of the lorry bearing No.AP-2T-6742 drove the vehicle in a rash and negligent manner and at high speed and dashed against the said Auto, as a result of which, the Auto was badly damaged and six persons including the driver of the Auto died and 13 persons received injuries. On a complaint given by one of the injured N.Balaiah, a case in Cr.No.11 of 2003 was registered against the driver of the lorry under Sections 304(A), 338 and 337 IPC. It is stated that out of 13 injured persons, only two injured persons filed O.P.Nos.315 of 2005 and 431 of 2005 respectively, while the legal heirs of the deceased persons filed O.P.Nos.382, 393 and 421 of 2005 respectively. It is the case of the claimants that the accident occurred due to rash and negligent driving of the driver of the offending lorry, owned by B.Venkatesulu, the 1st respondent in the said O.Ps. During the course of hearing O.Ps., the owner of the offending vehicle died and his legal heirs were brought on record. The Tribunal, after considering the oral and documentary evidence, partly allowed the said O.Ps., by separate orders, dated 25-01-2007, awarding compensation as stated above. Aggrieved by the aforesaid orders, the present appeals are filed by the Insurance Company. It is the case of the appellant-insurance company in all the appeals that the quantum of compensation awarded by the Tribunal is exorbitant and without following the procedure under the Motor Vehicles Act. It is further stated that the Tribunal ought to have rejected the compensation on the ground that the driver of the Auto violated the terms and conditions of the policy. The seating capacity of the Auto was only three persons. In fact, the Auto was carrying 13 persons at the time of the accident, and therefore, violated the transport permit. Therefore, the Tribunal ought to have rejected the claim of the claimants. It is further stated that the evidence available on record establishes that there was contributory negligence on the part of the driver of the Auto and, therefore, some portion of the liability ought to have been fastened on the insurer of the Auto. It is stated that the II Schedule of M.V.Act is not applicable in respect of the claim petitions filed under Section 166 of M.V.Act and therefore, the Tribunal wrongly came to the conclusion while estimating the income in the absence of any proof. During the course of arguments, learned counsel appearing for the Insurance Company strenuously contended that there is contributory negligence on the part of the driver of the Auto and, therefore, some liability ought to have been fastened on the insurer of the Auto. The occurrence of accident is not in dispute, but according to the Insurance Company, the accident occurred due to rash and negligent driving of the driver of the Auto also. According to the claimants, the accident occurred due to rash and negligent driving of the driver of lorry alone. In all the claim petitions, the narration relating to the accident said to have occurred due to rash and negligent driving of the offending vehicle is common. Insofar as the quantum of compensation is concerned, the legal heirs of the deceased have narrated about the income of the deceased and the loss of contribution to the family. Insofar as the injured is concerned, the injured persons have stated about the nature of injuries sustained by them and also the medical expenses incurred by them. Insofar as the quantum of compensation is concerned, I am of the opinion that the Tribunal, after considering the oral and documentary evidence, had rightly allowed the aforesaid compensation, which is not exorbitant or excessive. Therefore, the only question that arises for consideration is as to whether there was any contributory negligence on the part of the driver of Auto? On behalf of the Insurance Company, the Senior Assistant of the Insurance Company was examined as RW.1 and stated that as per the R.C. of the Auto, seating capacity is ‘four in all’. But, as per the criminal case record, at the time of accident, 14 persons were travelling in the Auto. Out of them, six persons died and remaining persons sustained injuries. The driver of the Auto had allowed more passengers than capacity. If the driver of the Auto had allowed permitted capacity, the driver of Auto would have easily avoided the accident. Therefore, there is a contributory negligence on the part of the driver of Auto also. As per the statement of Boya Yerri Swamy, who was working as a cleaner of the lorry at the time of accident, there was negligence on both the drivers i.e., lorry as well as Auto. The police also filed charge-sheet against the drivers of both the vehicles. Ex.B-4 is the xerox copy of statement of Boya Yerri Swamy recorded under Section 162 Cr.P.C. in Cr.No.11 of 2003. In cross-examination, RW.1 stated that he has no personal knowledge about the accident in question. The suggestion that there was rash and negligent driving on the part of the driver of the lorry alone but not on the part of the driver of the Auto, was denied. It is admitted that the police filed charge-sheet against the driver of crime lorry alone. The cleaner of the lorry was examined as RW.2 and stated that he witnessed the accident. At the time of accident, the crime lorry was going from Thagguparthi to Chellikera and an Auto rickshaw came in the opposite direction of the lorry carrying 14 or 15 passengers. At that time, he noticed two passengers sitting on both sides of the driver of the said Auto. The place where the accident occurred is a single road. By seeing the Auto, the driver of the lorry blow horn asking the Auto to take side, but the said Auto did not give side to the lorry. He was examined by the police in the criminal case and Ex.B-4 is his 161 Cr.P.C. statement recorded by police. In cross-examination, it is stated that at the time of accident himself, driver and the owner of the goods were travelling in the lorry. The suggestion that eight passengers along with them were sitting in the cabin of the lorry at the time of accident, was denied. He had seen the said Auto coming in high speed and the lorry was also running in high speed and the lorry driver did not try to reduce the speed. In spite of his advise, the driver of the lorry drove the vehicle in high speed. The suggestion that the Auto driver was at extreme left side of the road, was denied. The road at which the accident took place is having a width of about 15 ft. The width of the lorry is about 6 ft. and the width of the Auto is about 3 ft. Even if the auto passes in the middle of the road, the road is wide enough to pass for the lorry. After the accident, the driver of the lorry fled away, leaving the lorry at the spot. According to the Insurance Company, RW.2 is an eyewitness to the accident but he has not given any complaint to the Police stating that the accident occurred due to the negligence of the driver of the Auto. But, on the other hand, a perusal of FIR goes to show that a complaint was given by one Nayakula Balaiah, on 27-02-2003 at about 4 p.m. stating that while he along with others were travelling in the said Auto and when it reached near 5 KM stone on Rayadurg to Anantapur near 74 Udegolam village, one lorry came in the opposite direction in high speed and dashed against the said Auto, as a result of which, the front portion of the Auto was totally damaged and six persons travelling in the Auto including the driver of the Auto died and several others received bleeding injuries. He was taken to the Government Hospital for treatment. A perusal of charge-sheet, which was marked in all cases, goes to show that basing on the said complaint, a case was registered against the driver of the lorry and thereafter, further investigation was taken up. During the course of investigation, on 27-02-2003, inquest was conducted on six dead bodies including the driver of the Auto. The Motor Vehicle Inspector inspected the crime lorry and stated that there was no mechanical defect in respect of the said lorry and the investigation revealed that the driver of the lorry drove the vehicle in a rash and negligent manner and at high speed and caused the accident. A perusal of the evidence available on record goes to show that the driver of the lorry fled away immediately after the accident and one of the passengers of the Auto made a complaint immediately after the accident. Thereafter, several others also informed the police. The police immediately took up investigation and the investigation revealed that the accident occurred due to rash and negligent driving of the driver of the lorry alone. In fact, there is no evidence to come to the conclusion that there was contributory negligence on the part of the driver of the Auto. In the absence of any evidence that there was contributory negligence on the part of the driver of the Auto, it cannot be assumed and presumed that there was contributory negligence on the part of the driver of the Auto. In fact, no evidence has been adduced to show that had the Auto driver permitted less number of passengers, he would have avoided the accident. Therefore, I am of the opinion that the Tribunal had rightly held that the owner as well as the insurer of the offending vehicle are jointly and severally liable to pay compensation. In view of the aforesaid facts and circumstances of the case, I do not see any merit in the appeals and the same are liable to be dismissed. Insofar as awarding of interest @ 7.5% is concerned, I am of the opinion that the Tribunal had rightly awarded interest @ 7.5% per annum. Therefore, I am not inclined to interfere with the same. Accordingly, the appeals are dismissed. There shall be no order as to costs. ___________ 18-07-2010 Prv