THE HON'BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.Nos:130, 132, 169, 306, 332, 333, 334 & 1476 of 2006, 1231 of 2008, 1515, 1524, 1648 & 1651 of 2009 COMMON JUDGMENT: Questioning the quantum of compensation, the New India Assurance Company represented by its Divisional Manager, Ananthapur, preferred these appeals under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’) against the common order dated 25.02.2005 passed in M.V.O.P.Nos.43, 44, 45, 46, 47, 48, 49, 50, 230, 264 of 1998, 311 & 313 of 2001 and 453 of 2004 by the Motor Accidents Claims Tribunal-cum-VI Additional District Judge (Fast Track Court) Ananthapur at Gooty. 2. The claimants, who are the legal heirs of the deceased, filed the above O.Ps. under Sections 140 and 166 of the Act, and Rule 455 of the A.P. Motor Vehicles Rules 1989 against the owner and the Insurer of the offending lorry, claiming compensation for the death of the deceased in an accident that occurred on 28.10.1997 at about 7 a.m., when the coolies were traveling in a lorry bearing No.AP02-T- 8130 during the course of their employment and when it reached Putlur Road railway gate, the driver of the lorry drove it with high speed in a rash and negligent manner and lost control over the same. As a result, 28 persons including the deceased in the said O.Ps. died and some others sustained grievous injuries. On the basis of the report given by one Harijana Obulesu, a case in Crime No.123 of 1997 of Tadpatri Taluk Police Station was registered for the offences under Sections 337, 338, 304-A IPC. 3. The first respondent-owner of the lorry remained ex parte. The second respondent-Insurance Company filed counter denying the allegations made in the petition contending that the deceased were engaged by one Dubba Thippa Reddy. Hence they were gratuitous passengers in the crime lorry since they were neither employees nor coolies under the first respondent-owner. Even if the deceased and others were coolies in the crime lorry, the liability of the Insurance Company, if any, shall be restricted only to six coolies, as the Insurance Company while issuing the policy has collected premium to cover the liability for six coolies only. Therefore, the Insurance Company is not liable to pay compensation, and prayed to dismiss the petition. 5. On the basis of the above pleadings, the Tribunal framed the following issues for trial. 1. Whether the accident occurred on 28.10.1997 due to rash and negligent driving of the driver ofLorry No.AP02-T-8130 its driver and caused the death of deceased ? 2. Whether the petitioners are entitled to compensation and if so, to what amount and from which of the respondent ? 3. To what relief ? Before the Tribunal, on behalf of the claimants PWs.1 to 12 were examined and Exs.A.1 to A.17 were marked. On behalf of the respondents, RW.1 was examined and Ex.B.1-Insurance Policy was marked. 5. On a consideration of the oral and documentary evidence adduced by both the parties, the Tribunal held on Issue No.1 that PW.10, who was traveling along with the deceased persons, and also an eyewitness to the accident, categorically stated in his evidence that the accident occurred due to the rash and negligent driving of the driver of the offending lorry. Though the second respondent pleaded that there was no negligence on the part of the lorry driver, no acceptable evidence was placed to disprove the evidence of PW.10 and Ex.A.3-charge sheet. Further, not only the evidence of the direct witnesses to the accident but also the judgment in C.C.No.46 of 1998 marked as Ex.A.5 categorically disclose that the driver of the lorry drove the vehicle in a rash and negligent manner, as a result, there were 28 deaths. Therefore, the Tribunal held that the accident was occurred due to the rash and negligent driving of the driver of the offending lorry and answered the issue in favour of the claimants. On Issue No.2, the Tribunal observed that though the Insurance Company alleged that the coolies were engaged by Dubba Tippa Reddy, it has not examined Dubba Thippa Reddy, nor any acceptable evidence was placed to prove that the coolies were engaged by Dubba Thippa Reddy. Mere allegation in the FIR that Dubba Thippa Reddy called the claimants as coolies to pluck the cheeni fruits from the garden, does not by itself inherently capable to establish the factum that they were engaged by Dubba Thippa Reddy for the said work. It is well established principle of law that the FIR is not a substantive piece of evidence, but it can be used only for corroboration. The evidence of PW.10 leads to an irresistible conclusion that the coolies were engaged by the owner of the lorry to transport them to pluck cheeni fruits and load them in the lorry and while they were returning, the accident occurred. In view of the same, the Tribunal held that the Insurance Company is liable to pay compensation, and consequently, the owner of the lorry and the Insurance Company jointly and severally liable to pay the compensation to the claimants. Aggrieved by the same, the Insurance Company filed these appeals. 6. Heard the learned counsel for the appellant-Insurance Company and learned counsel for the respondents/claimants. 7. Learned counsel for the appellant contended that the deceased and others, who were traveling in the offending lorry, were engaged by one Dubba Thippa Reddy and were not engaged by the owner of the lorry. In such a situation, the Tribunal ought not to have imposed the liability on the Insurance Company since they are unauthorized passengers. 8. To substantiate the said plea, the appellant has not adduced any evidence to prove that the deceased were not engaged by the owner of the lorry, whereas there is evidence to the effect that these coolies were engaged by the owner of the lorry. The Insurance policy was subsisting as on the date of accident. The claim of third party is unlimited. In view of the fact that 28 persons died in the said accident, the insurance company cannot escape from its liability. Hence I am of the considered opinion that the Tribunal rightly came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of the lorry and fastened the liability on the owner of the lorry and the Insurance Company jointly and severely. Hence I see no merit in the appeal. Therefore, the same is liable to be dismissed. 9. The learned counsel for the appellant contended that as per Ex.B.1-policy the liability is confined only to six persons. For the remaining persons the owner of the lorry is under obligation to pay the compensation. 10. As seen from Ex.B.1 policy, such a condition was specified in the terms and conditions of the policy. Therefore, the award of the Tribunal against the Insurance Company is confined only to six persons. Rest of the persons can recover the amount from the owner of the lorry. 11. However, the learned counsel for the appellant contended that the interest awarded by the Tribunal is on higher side. Hence I deem it appropriate to reduce the interest awarded by the Tribunal from 9% p.a. to 7% p.a. 12. The Civil Miscellaneous Appeals are partly allowed to the extent indicated above. There shall be no order as to costs. ________________________ (GHULAM MOHAMMED, J.) 29th July, 2010 Js.