IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE NINETEENTH DAY OF JULY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A. No.488 of 2002 and Cross Objections C.M.A. No.488 of 2002: Between: The Oriental Insurance Company Ltd., rep. by its Divisional Manager, Visakhapatnam city .. Appellant AND Landa Ramulamma and others .. Respondents Cross Objections: Between: Landa Ramulamma and others .. Cross Objectors AND The Oriental Insurance Company Ltd., rep. by its Divisional Manager, Visakhapatnam city .. Respondent COMMON JUDGMENT: The appeal and the cross-objections are directed against the award in M.V.O.P. No.645 of 1998 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District and Sessions Judge, Srikakulam, dated 30-10-2001. The facts leading to the appeal and the cross-objections are that on 08-06-1998 Landa Appanna and some other labourers were engaged by one Gunna Apparao for cleaning his well and he entrusted lorry No.AP.03/U-702 to the labourers for the purpose. The 1st respondent was the driver of the lorry, who was entrusted to assist the labourers and as instructed, the 1st respondent tied one end of a rope to the cabin of the lorry giving the other end of the rope to the labourers near the ring well. A bucket was tied to the other end of the rope and Appanna got down into the well to pull the mud water, while the other labourers stood on the wooden plank placed across the well. When the work was being done with Appanna filling empty bucket with mud water and other labourers lifting the same from the well, the 1st respondent, all of a sudden, started the lorry with great speed and drove it rashly and negligently, due to which the rope tied to the bucket came out forcibly from the well and hit the wooden plank, on which, the labourers standing on the wooden plank jumped out. The wooden plank fell on the head of Appanna who sustained severe injuries on head and other parts of the body and fell unconscious. Appanna was taken to Government Headquarters Hospital, Srikakulam for treatment and he died on 9-06-1998 while undergoing treatment. The claimants are his wife, minor sons and unmarried daughter and they were deprived of their only source of livelihood on the death of Appanna. Appanna was claimed to be working as an agricultural labourer and maistry earning Rs.100/- per day and was stated to be aged 35 years. The medical and travelling expenses were stated to be Rs.5,000/- and the lorry was stated to be insured with the 3rd respondent. Hence, the claimants sought for a compensation of Rs.3,00,000/- from the driver, owner and insurer of the lorry. The claim was later not pressed against the driver of the lorry and the owner of the lorry remained ex parte before the Tribunal. The insurer contested the claim contending that the accident was not covered by the terms, conditions and contractual obligations under the cover note of the insurance policy for the lorry and the purpose for which the lorry was used was not contemplated by the insurance policy. The insurer, therefore, denied its liability apart from contending that the lorry driver had no valid driving licence and the quantum of compensation claimed was excessive. The Tribunal framed issues on the manner of the accident and the entitlement of the claimants to compensation and during the enquiry, P.Ws.1 and 2 and R.W.1 were examined and Exs.A.1 to A.4 and B.1 to B.3 were marked. The Tribunal rendered the impugned award firstly accepting the evidence of P.W.2, who was an eye witness, which was corroborated by Ex.A.1 first information report registered at the earliest point of time on the statement of P.W.2. The Tribunal after a detailed analysis, found that the accident was caused by the 1st respondent driver by his negligent driving of the lorry and the Tribunal also considered the evidence of R.W.1, the Senior Assistant of the insurer, with reference to the claims about the coverage by the insurance policy Ex.B.1 and found that the insurer is liable to compensate the legal representatives of the deceased under the circumstances claimed by the claimants. The Tribunal referred to the decisions of the Apex Court and this Court in this regard and found that the insurer cannot escape from the liability for the acts of the driver of the vehicle when they were not without the consent or knowledge of the owner of the vehicle. The owner and insurer of the vehicle were, hence, considered liable to pay just and adequate compensation and the Tribunal assessed the income of the deceased at Rs.60/- per day for 25 days in a month in the absence of any specific evidence and further found that taking the age of the deceased as 38 years as mentioned in Ex.A.2 post-mortem certificate, appropriate multiplier applicable is 16. The Tribunal deducted one-third towards the personal expenses of the deceased had he been alive and assessed the loss of dependency on the remaining two-third of the assessed income. The Tribunal also awarded Rs.12,000/- towards loss of estate, Rs.1,000/- towards transport expenses, Rs.1,000/- towards mental agony and Rs.12,000/- towards loss of consortium and granted a total compensation of Rs.2,18,000/-, which was directed to be proportionately apportioned between the claimants. The Tribunal awarded interest at 12 per cent per annum following the principles laid down by the decisions of the Apex Court and this Court in this regard holding the fixation of rate of interest to be in the judicial discretion of the Court. The Tribunal also gave directions about the manner of disbursement of the compensation. The insurer challenges the said award in the appeal mainly contending that the insured vehicle was used for a purpose other than the limitations prescribed in the general exceptions of the insurance policy making the insurer not liable to pay any compensation. The insurer claimed that in view of the violation of the terms of the policy by using a goods vehicle for carrying labourers and for tying a rope to the lorry for cleaning well, the insurer is absolved of any liability and therefore, desired the impugned award to be reversed. In the cross-objections, the claimants contended that the Tribunal should have awarded the amount of compensation as claimed and the monthly income should have been assessed at Rs.3,000/- and no amount should have been deducted towards the personal expenses. The Tribunal should have taken higher multiplier into account and should have granted higher compensation under other heads also. Therefore, they desired that the entire compensation of Rs.3,00,000/- as claimed may be awarded. Smt. I. Maamu Vani, learned counsel for the appellant and Sri A. Rama Rao, learned counsel for the claimants are heard and the owner of the lorry remained ex parte before this Court also, while the appeal against the driver was dismissed for default by the order of this Court, dated 25-09-2008. The points that arise for consideration herein are about the liability of the insurer under the circumstances and the quantum of just and adequate compensation. In so far as the liability of the insurer is concerned, it cannot be contended that the accident did not occur out of the use of a motor vehicle. The allegations right from Ex.A.1 first information report to Ex.A.4 charge-sheet against the driver of the lorry and in the evidence of P.W.2, the eye witness, were clear that because the lorry driver suddenly started the vehicle and had driven it rashly and negligently, the rope pulled out of the well forcibly resulting in the labourers jumping away from the wooden plank and the wooden plank falling on the head of Appanna injuring him fatally. The resultant death of Appanna is, therefore, very proximately and closely connected with the use of the motor vehicle in question. In so far as the claim about the use of the lorry against the terms and conditions of the insurance policy is concerned, it is not shown that the driver of the lorry/owner of the lorry permitting tying of the rope to the lorry, which was used in cleaning of the well, is against any specific term or condition of the insurance policy. If the driver, who had implied consent of the owner, had permitted such use of the lorry and had driven the lorry rashly and negligently while the lorry is being so used, the resultant effect will fasten tortious liability to the insurer under the insurance policy and as held in United India Insurance Co. Ltd., Hyderabad v. P. Prabhavathi and others[1], the liability of the insurer is not confined only to the consequences arising out of the movement of the vehicle in question, but also situations arising out of the events effecting the vehicle and/or its inmates while the vehicle is in ‘use’ in the statutory sense. As in that case, negligence can be attributed to the owner of the vehicle in permitting the driver to use the lorry in the manner in which he did. The vicarious liability of the owner and insurer cannot be erased under such circumstances. That apart, the Tribunal itself relied on various other relevant judicial precedents on the aspect which need not be replicated herein and there is no reason to differ from the conclusion of the Tribunal about the liability of the insurer in this regard. The learned counsel for the appellant relied on Mamtaj Bi Bapusab Nadaf and others v. United India Insurance Company and others[2] to contend that the death had no proximate or direct connection with any motor vehicle accident. But it is seen from the decision that in that case, the vehicle was not in operation and was not involved in the accident and there was no proximate or direct connection of death of the workmen with the vehicle unlike the present case. In fact, the Apex Court referred to two other earlier precedents where the consequences of the accidents did not actually arise out of the physical use of the motor vehicles, but still the liability of the owner and the insurer to compensate the victims was upheld. Coming to the quantum of compensation, the Tribunal assessed the monthly income of the deceased on the basis of reasonableness in the absence of any specific evidence about the quantum of income of the deceased as a labourer or as a maistry. The assessment of the income by the Tribunal was not shown to be, in any way, deviant from the minimum wages payable to the labourers at the relevant time and deduction of one-third towards personal expenses of the deceased is in tune with the accepted norms under the circumstances. Though in Sarala Verma v. Delhi Transport Corporation[3], such deduction was considered to be at the scale of one-fourth where the number of dependents is four, as it is only in approximation that such a deduction is considered, which is always subject to the special features of each case, the deduction also need not be interfered with at this distance of time. The Tribunal also awarded Rs.12,000/- each towards loss of estate and consortium, which are much above the limits indicated by Sarala Verma v. Delhi Transport Corporation (3 supra) apart from granting transport expenses and compensation and therefore, on an overall view, the quantum of compensation awarded cannot be considered unreasonable and low. The learned counsel for the appellant questioned the rate of interest adopted by the Tribunal. But the Tribunal gave cogent reasons for adoption of such rate of interest in exercise of judicial discretion. That apart, it has to be noted that the interest awarded is not challenged on any specific ground in the memorandum of grounds of appeal and therefore, the same also need not be interfered with. The quantum of compensation fixed by the Tribunal is, therefore, to be maintained notwithstanding the objections of both parties to the same. In the result, both the appeal and the cross-objections have to fail and accordingly they are dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 19-07-2011 Svv [1] 2011(4) ALD 332 [2] (2010) 10 Supreme Court Cases 536 [3] 2009 ACJ 1298