*THE HON’BLE SRI JUSTICE B.N.RAO NALLA M.A.C.M.A.No.2096 of 2007 % 08.07.2010 Between: The National Insurance Co. Ltd., rep. by its Divisional Manager, Divisional Office, Vijayawada, through Local Branch Office, Wyra Road, Khammam. .....APPELLANT AND 1. Veldi Chandra Sekhar, s/o.Balaiah,aged 46 years, cc:Agriculture, r/o/.Hasanaparthi Village of Mandal of Warangal District. 2. Veldi Vara Laxmi w/o.Chandra Sekhar, aged 42 years, r/o.Hasanaparthi village and Mandal of Warangal District. …….Respondents . ! COUNSEL FOR APPELLANT: Mr. Ravi Shankar Jandhyala ^COUNSEL FOR RESPONDENTS: Mr. B.Papa Rao < Gist: > Head Note: ? CITATIONS: [1] 2007 (6) ALD 306, 2 2005 ACJ-1 3 2007 ACJ- 818 4 2004 (1) ALD (NOC) 34 5 (2009) 2 SCC 417 6 2009 (6) SCC 121 THE HON’BLE SRI JUSTICE B.N. RAO NALLA M.A.C.M.A. No. 2096 of 2007 JUDGMENT: This appeal arises out of an order dated 17.01.2007 passed in O.P. No.1282 of 2002 by the Chairman, Motor Accidents Claims Tribunal-cum- III Additional District Judge (FTC-II), Khammam whereby the claim petition of the respondents herein was allowed with costs by granting an amount of Rs.2,00,000/- besides the claim under Section 140 of the Motor Vehicles Act for Rs.50,000/- with interest at the rate of 7.5% per annum. 2. The facts leading to the filing of this appeal can be summarized as follows: The deceased was the driver-cum-owner of the lorry bearing No. AP-16-U-9144. On 20.05.1999, he was proceeding with his lorry with the load of iron pipes from Warangal and when he reached the outskirts of Tirumalayapalem village at 1.30 hours on R & B Road leading to Khammam from Warangal, a tractor bearing No. AP-36-T- 6802 came in opposite direction, hit the tractor, being unable to avoid the accident due to narrowness of the road and further to save the lives of the driver of the tractor and another occupant of the tractor, he completely turned the lorry and in that process he lost control over it and ultimately it hit against a tree by the side of the road, as a result, he received grievous injuries over his head and other vital organs. He died on the spot. The cleaner sustained grievous injuries. The Police, Tirumalayapalem, on a complaint, registered a case in Crime No.48/99 under Sections 304-A and 337 IPC. The deceased was aged about 27 years by the date of accident. The deceased used to earn Rs.5,000/- per month, after excluding maintenance of his lorry, his salary and salary of the cleaner. He was the only son to his parents. The said lorry was insured with the appellant-insurance company and the policy was in force as on the date of accident. Thus the appellant-insurance company is liable to pay compensation to indemnify the owner. 3. The appellant-insurance company filed counter disputing the age, avocation and earnings of the deceased. They also disputed the manner of the accident, occurrence and the alleged involvement of the lorry and alleged that the deceased himself was negligent in driving of the lorry and was instrumental in causing the alleged accident. They denied that they issued a policy covering the risk of the deceased and the lorry. The insurance company would indemnify the liability of the deceased against third parties only. The insurance company is not liable to pay damages for the death of the deceased. They disputed that the claimants are the only legal heirs of the deceased. Further, the claim made by the claimants is highly excessive and exorbitant. 4. Considering the pleadings of both sides, the lower Tribunal had framed the following issues: i.Whether the accident took place due to rash and negligent driving of the driver of lorry bearing No.AP-16-U-9144? ii.Whether the petitioners are entitled to any compensation? If so, to what amount and from which of the respondents? iii.To what relief? 5. PWs 1 and 2 were examined and Exs.A.1 to A.7 were marked for respondent-claimants. RW.1 was examined and Exs.B.1 was marked for appellant- insurance company. 6. After conclusion of the trial, the lower Tribunal passed the impugned order as stated in Para 1, supra. 7. The lower Tribunal has based its finding that the accident had occurred on 20.5.1999 while the vehicle was being used in a public place due to rash and negligent driving on the part of the driver of the said vehicle, bearing registration No.AP-16-U-9144 and while Ex.B.1 policy was in force from 21.10.1998 to 20.10.1999. That the appellant- insurance company had collected premium under the head ‘employees’ in Ex.B.1 policy and as such the appellant-insurance company is liable to pay compensation covering the risk of driver and cleaner working on the lorry. That deceased himself was the owner of the said lorry. 8. It is the case of the appellant-insurance company that the deceased was not only a driver but also the owner of the accident vehicle. Therefore, he is not entitled to any compensation. That for the fault on the part of the owner of the vehicle the insurance company cannot be made liable since the owner himself contributed towards the accident. Lastly the quantum of compensation amount is also questioned. 9. The pleas raised on behalf of the appellant-insurance company are that the deceased was not only the owner of the lorry but was also driving the lorry at the time of the accident, and therefore, he is not covered by third party insurance policy (Ex.B.1); that Motor Accidents Claims Tribunal had no jurisdiction to entertain the claim petition; that Ex.B.1- policy also did not cover the owner of the vehicle; that since the deceased was an unmarried person, the lower Tribunal ought to have taken the age of his mother into consideration for applying proper multiplier and half of his monthly earnings should have been deducted towards his personal expenses instead of 1/3rd and that interest at the rate of 6% per annum only should have been awarded. 10. In support of the said legal pleas, certain legal decisions have been relied upon, however, the facts therein are varied and different. 11. The only question that arises for consideration in this appeal is whether the owner of motor vehicle while driving it dies in an accident, his L.Rs are entitled to claim compensation? 12. In a decision reported in Jayavarapu Rajamma v. Jayavarapu Laxminarayana,[1] on a similar question, the matter was referred to a bench of higher strength and the Division Bench relying on Dhanraj v. New India Assurance Co. Limited,[2] and Oriental Insurance Co. Ltd. v. Jhuma Saha & others [3] and other judgments, answered the reference, inter alia, that the owner of the vehicle/insured driving or travelling in the vehicle in case of injuries or his legal representatives in case of his death in the accident cam make a claim only if the policy by its terms covers such risk. That kith and kin of the insured for injuries and their legal representatives in the event of their death in the accident can sustain claims for compensation as third party claims provided the relevant policy of insurance covers such a risk. That the terms of the insurance policy determine the liability of the insurer in each case. 13. On the other hand, it is contended on behalf of the respondent- claimants that, though, the deceased was the owner of the accident vehicle and, though, he was driving the said vehicle at the time of his death in the accident, he is very well covered under Ex.B.1 policy, relying on a decision reported in New India Assurance Co. Ltd., v. Nagalla Laxmi and another [4]. The full text of which is reported in 2003, Andhra Weekly Reporter, 2-1 wherein at Para 12, it was held as under: “The same principle could be applied to this case where the owner was driving the vehicle, which he owns. Whether he was travelling along with his own goods ordering his own goods vehicle makes no difference in the eye of law. Even though in Mallu Bhai case, the Division Bench held that the insured did not fall within the definition of third party, yet in later decision the position was made clear. Further the premium was already paid to cover the risk of the driver. In such an event, the owner gets substituted as driver of the vehicle and such a person is entitled for compensation. The words “any person” occurring in Section 95 (1)(b)(i) has to be interpreted for advancing the purpose for which the Section 95 was engrafted in the Act and thus construed, the expression “any person” also includes the owner of goods vehicle whether he was travelling or driving. In this case, it was not disputed that the owner was having valid licence. Under these circumstances, I have to necessarily interpret the policy to the advantage of the victims and not to curtail the rights of victims of motor accidents, may be the owner, his dependents or the third parties. Consequently, the issue relating to negligence on the part of the owner-cum- driver pales into insignificance.” 14. It is to be observed that Sri Ravi Shanker Jandhyala, the counsel for the appellant in this M.A.C.M.A. was also counsel for the appellant in the C.M.A. in which the above decision was rendered, representing respondents in cross objections. 15. In a decision reported in New India Assurance Company Limited v. Sadanand Mukhi and others,[5] at the bottom of Para 11, it is observed that “ the provisions of the Act, therefore, provide for two types of insurance- one statutory in nature and the other contractual in nature. Whereas the insurance company is bound to compensate owner or the driver of the motor vehicle in case any person dies or suffers injury as a result of an accident; in case involving owner of the vehicle or others are propose to be covered, an additional premium is required to be paid for covering their life and property.” 16. It is to be seen from Ex.B.1 policy in this case that a premium of Rs.60/- towards employees is paid. 17. From the above decisions as well as Ex.B.1-policy, it becomes clear that owner of the vehicle may be covered under third party risk by paying special premium towards the same and the same has been done in the case on hand. Therefore, it has got to be held that the deceased who was the owner of the accident vehicle and who was driving the said vehicle at the time of his death in the accident is covered. 18. Therefore, the contentions raised on behalf of the appellant- insurance company that Ex.B.1- policy did not cover the deceased cannot be accepted. 19. That consideration of age for applying proper multiplier and percentage of deduction from the earnings of the deceased towards his personal expenses are stated to have not been raised before the lower Tribunal. 20. In view of the facts and circumstances, this court finds no legal infirmity in the impugned award warranting any interference from this court. 21. However, in so far as awarding interest at 7.5% per annum is concerned, the same is liable to be reduced and the same is hereby reduced to 6% per annum in view of the decision reported in Sarala Varma v. Delhi Transport Corporation of India[6]. 22. With such modification of interest, this M.A.C.M.A. is disposed of. No order as to costs. ​_______________ B.N.RAO NALLA,J 08-07-2010 Note: L.R. copy to be marked. B/o. Stp [1] 2007 (6) ALD 306, [2] 2005 ACJ-1 [3] 2007 ACJ- 818 [4] 2004 (1) ALD (NOC) 34 [5] (2009) 2 SCC 417 [6] 2009 (6) SCC 121