THE HON’BLE SRI JUSTICE D.S.R.VARMA Civil Miscellaneous Appeal No.2844 of 2003 Date: 19.08.2010 Between: United India Insurance Company Limited … Appellant And D. venkata Lakshmamma and others. … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA Civil Miscellaneous Appeal No.2844 of 2003 ORAL JUDGMENT: Heard learned Standing Counsel for the appellant-United India Insurance Company as well as learned counsel for respondent Nos.1 to 6-claimants. 2. Aggrieved by the Award and decree, dated 28.3.2003, in O.P.No.535 of 1997, passed by the Chairman, Motor Accident Claims Tribunal (District Judge), Anantapur (for brevity “the Tribunal”), awarding a sum of Rs.1,08,000/- towards compensation as against the claim of Rs.1,20,000/- made by the petitioners therein for the death of the deceased-D.Pandurangaiah, who died in a motor accident that occurred on 20.06.1997, due to the rash and negligent driving on the part of the driver of the lorry, bearing registration No.AP 02T 6988, the present civil miscellaneous appeal has been preferred by the insurer- United India Insurance Company. 3. The appellant is the insurer of the offending lorry, respondent Nos.1 to 6 herein are the claimants and respondent No.7 is the owner of the offending lorry. 4. This is a case of death in a road accident. The method and manner in which the accident had occurred is not referred to since already on record. The Tribunal, after appreciating the entire evidence on record, both oral and documentary, awarded a compensation of Rs.1,08,000/- for the death of the deceased. Hence, the present appeal by the insurer. 5. Learned Standing Counsel for the appellant-insurer contends that from the said evidence of P.W.1, what could be gathered is that the offending vehicle was actually engaged for attending the marriage, but not for transporting the goods and the deceased was accompanying the goods as a Hamali. Therefore, the deceased has to be treated as an unauthorized passenger. 6. The only point that arises for consideration in this appeal is whether the deceased was travelling in the offending lorry as an unauthorized passenger or not? 7. I have carefully gone through the impugned Award passed by the Tribunal. From a perusal of the impugned Award, it could be seen that P.W.1-wife of the deceased denied the suggestion that on the date of accident, the deceased along with others went to Tirupati by engaging a lorry to perform the marriage of his elder brother’s daughter. 8. P.W.2, who is another Hamali, had deposed that he was working as Hamali along with the deceased, who was also a Hamali, and they used to transport ground-nut seed from their village to Kalahasthi. But, this witness did not speak anything about the disputed fact of engaging the vehicle for attending the marriage purpose. He only spoke about the rash and negligent driving on the part of the driver of the offending lorry. 9. Therefore, it is contended by the learned Standing Counsel for the appellant-insurer that this witness, since was not examined by the police and was not initially cited as list witnesses, his evidence cannot be taken into consideration and the same has to be eschewed from consideration. 10. R.W.1 the Assistant Divisional Manager of the Insurance Company, who was examined on behalf of the insurer, had deposed that the deceased and others were travelling in the offending lorry as fare paid passengers. But, in the cross-examination, he appears to have admitted that the insurance policy covers the risk of six Hamalies and one non-fare paid passenger. He also admitted that there was nothing to show from the Criminal Court record that the deceased paid fare to the driver. Therefore, except the allegations in the F.I.R. that the elder brother of the deceased has booked the van for the purpose of performing his daughter’s marriage at Tirupati, there is no other evidence. That apart, there was no evidence to show that the deceased had actually paid fare to the driver of the van. 11. It has been further pointed out by the Tribunal that even assuming that the vehicle was engaged for carrying the people to attend a marriage function, there is nothing on record to show that the deceased was actually travelling in the said van by paying travelling expenses. 12. Therefore, I am in full agreement with the reasoning accorded by the Tribunal in awarding the amount of compensation and fastening the liability on both the insurer as well as the owner of the offending lorry. Inasmuch as, merely because the vehicle was engaged for carrying the people, but so long as there is no evidence to the effect that the actual fare was paid by the deceased to the driver, no such presumption can safely be drawn that the deceased was travelling in the vehicle as a paid passenger. 13. These are all disputed questions of fact, which this Court cannot go into and the Tribunal, after considering the evidence on record, had elaborately recorded its finding on merits to the effect that there was no adequate evidence adduced on the part of the appellant- insurer in order to demonstrate that the deceased was actually travelling in the vehicle as a paid passenger. 14. On the other hand, admittedly, the insurance policy covers the risk of 6 hamalies and one non-fare paid passenger. In those circumstances, particularly when the insurance policy itself covers 6 hamalies and one non-fare paid passenger and more particularly when the deceased was not established to be a fare paid passenger, the presumption and the advantage should be in favour of the deceased only, but not otherwise. 15. Therefore, I do not find any reason to interfere with the impugned Award passed by the Tribunal in awarding the amount of compensation and fastening the liability on the insurer as well as the owner of the offending lorry. 16. However, the Tribunal had awarded interest at 9% per annum from the date of petition till the date of realisation. In my considered view, the said rate of interest is slightly on higher side. Therefore, exercising the power under Section 171 of the Motor Vehicles Act, 1988, I deem it appropriate to reduce the rate of interest from 9% to 7.5% per annum from the date of petition till realisation. 17. In the result, the civil miscellaneous appeal is allowed in part, reducing the rate of interest from 9% to 7.5% per annum from the date of petition till realisation. There shall be no order as to costs. _______________________ JUSTICE D.S.R.VARMA 19.08.2010. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA Civil Miscellaneous Appeal No.2844 of 2003 19.08.2010 (Msr)