IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF FEBRUARY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1037 of 2002 Between: Dappu Pushpamma & 4 others .. Appellants AND Mrs. Shanti Nair & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1037 of 2002 JUDGMENT: This appeal is directed against the award in O.P.No.290 of 1998, on the file of the Motor Accidents Claims Tribunal-cum- District Judge, Medak at Sanga Reddy, dated 14.09.2001. 2. Dappu Sudarshanam and others were returning to Mallepally Village on 02.01.1998 in tractor-trailer No.APT 5005 and at about 3.30 p.m., near Nandikandi Village on National Highway No.9, lorry No.AP 28T 3007, driven rashly and negligently in high speed, dashed the tractor-trailer from behind. Dappu Sudarshanam fell down and died on the spot and at the age of 28 years, Dappu Sudarshanam, who was studying for obtaining a degree from Dr.B.R. Ambedkar Open University, was earning Rs.2,000/- per month, while working with P. Bhaskar Reddy in his printing press and on his car as a driver. The deceased was contributing Rs.1,500/- per month to the family consisting of his wife, two daughters and parents. The claimants, therefore, sought for a compensation of Rs.2,50,000/- from the owner and insurer of the lorry. 3. The owner of the lorry contested the claim putting the blame for the accident on the driver of the tractor-trailer, the owner and insurer of which are necessary parties. In any view, the insurer of the lorry/the second respondent alone was stated to be liable to pay any compensation. 4. The insurer contested the claim contending that the valid and subsisting driving licence of the lorry driver, the insurance of the lorry, its road worthiness, etc., have to be proved by the claimants and the case is bad for non-joinder of necessary parties i.e., the owner and insurer of the tractor-trailer. The lorry driver had only a learner’s licence and hence, the insurer is not liable to pay any compensation. 5. The Tribunal framed issues about the responsibility for the accident, the death of Dappu Sudarshanam in the accident, the subsistence of a valid insurance policy for the lorry, the absence of any necessary parties, the dependence of the claimants and the entitlement of the claimants to any quantum of compensation. 6. During the enquiry, the Tribunal examined P.Ws.1 and 2 and R.W.1 and marked Exs.A-1 to A-11 and B-1 to B-3. 7. The Tribunal rendered the impugned award accepting the evidence of the eye witness, P.W.2, who was also travelling in the tractor-trailer and who was corroborated by Ex.A-1-First Information Report, Ex.A-2-Charge sheet, Ex.A-3-scene of offence panchanama, Ex.A-4-Inquest Report and Ex.A-6-Motor Vehicle Inspector’s Report. In the absence of any rebuttal evidence, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry resulting in the death of Dappu Sudarshanam. The Tribunal also concluded from Ex.B-1- Insurance policy that the lorry was covered by a valid and subsisting insurance on the date of the accident. The Tribunal consequently held that the owner and insurer of the tractor-trailer were not necessary parties and from Ex.A-4-Inquest Report corroborated by P.W.1, the Tribunal accepted that the claimants were the legal representatives of the deceased. Coming to the quantum of compensation, the Tribunal took the age of the deceased as 30 years with reference to Ex.A-4-Inquest Report and Ex.A-5-Post Mortem Report and the Tribunal took the income of the deceased as Rs.1,200/- per month or Rs.40/- per day in the absence of any documentary evidence and non-examination of the owner of the printing press. Deducting 1/3rd towards the personal expenses of the deceased, the Tribunal assessed the contribution to the family at Rs.800/- and the Tribunal adopted a multiplier of 14.51 and arrived at a figure of Rs.1,39,296/- towards loss of dependency to which it added Rs.15,000/- towards loss of consortium and held the claimants to be entitled to Rs.1,54,300/-. However, the Tribunal, with reference to the evidence of R.W.1, Ex.B-2-learner’s licence of the lorry driver and Ex.B-3- Investigator’s Report, concluded that the lorry driver was holding a learner’s driving licence at the time of the accident and in the light of the precedents referred to by the Tribunal, the driving of the lorry was held to be in violation of the statutory provisions absolving the insurer from the liability to pay the compensation. Accordingly, the Tribunal passed the award against the owner of the lorry for payment of the compensation with interest at 9% per annum and proportionate costs and negatived the claim against the insurer. 8. The claimants approached this Court with this appeal contending that the assessment of the monthly income, the selection of the multiplier, the non-grant of damages for loss of expectation of life, etc., were incorrect and the insurer should not have been absolved by the liability on the ground of the driver possessing only a learner’s licence. The Investigator who reported under Ex.B-3 was not examined and the salary certificate, Ex.A-11, ought to have been accepted showing the income of the deceased. Hence, the claimants desired the entire compensation as claimed be awarded against both the respondents. 9. Sri P.V. Vidyasagar, learned counsel for the appellants and Sri R. Venkata Rao, learned standing counsel for the second respondent/insurer are heard, while the appeal was dismissed for default against the first respondent vide order of this Court, dated 22.04.2008. 10. The points that arise for consideration are about the just and adequate compensation to which the claimants are entitled and the liability of the insurer also jointly and severally to pay such compensation. 11. The responsibility of the lorry driver for the accident resulting in the death of Dappu Sudarshanam as concluded by the Tribunal was not questioned by any party and also the existence of a valid and subsisting insurance policy for the lorry owned by the first respondent and insured with the second respondent is not in issue. The relationship of the claimants with the deceased and their dependence on the deceased are also not in question. 12. In so far as the age of the deceased is concerned, the opinion of the independent Mediators expressed in Ex.A-4- Inquest Report and the assessment of the Medical Expert in Ex.A- 5-Post Mortem Report were taken as the basis by the Tribunal and in the absence of any other dependable evidence, the age of the deceased can be safely assessed as about 30 years by the time of the accident and death. So far as the employment of the deceased is concerned, the claimant claimed to be working with P. Bhaskar Reddy, the owner of a Printing Press, in his press and on his car being paid Rs.2,000/- per month as salary, but to prove Ex.A-11-Salary Certificate issued by Jaya Offset Printers, none connected with the employer was examined. The Tribunal, therefore, without accepting the interested claims of the wife as P.W.1, assessed the daily income at Rs.40/- and the monthly income at Rs.1,200/-. While an element of estimate and guess becomes inevitable under such circumstances, there are no strong and convincing materials on record to differ from the assessment of compensation by the Tribunal. 13. However, the assessment of the compensation by the Tribunal does not fit in with the principles laid down by the Apex Court in SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION[1]. The deceased left his wife, two minor daughters and aged parents as his dependents and in case of the number of dependents being about 4 to 6, the deduction to be made towards personal and living expenses of the deceased should be only 1/4th according to the principles laid down by the Apex Court. If so, the loss of dependency per month would be Rs.900/- and per annum Rs.10,800/-. For a person of the age of 30 years, the appropriate multiplier applicable, according to the decision of the Apex Court, is 17 and on application of the same, the loss of dependency comes to Rs.1,83,600/-. 14. The decision also decided that the claimants will be further entitled to Rs.5,000/- towards loss of estate, Rs.5,000/- towards funeral expenses and the widow will be entitled to Rs.10,000/- towards loss of consortium. The total compensation would, therefore, come to Rs.2,03,600/-. The entitlement of the claimants to compensation can, therefore, be rounded off to Rs.2,05,000/-, to which extent there should be enhancement in favour of the appellants. 15. Coming to the liability of the respondents, the liability of the owner was not questioned by the owner himself by way of any cross appeal or cross objections. While the decision reported in NATIONAL INSURANCE CO. LTD. VS. SWARAN SINGH AND OTHERS[2] holds the field on the question in issue, a Three Judge Bench of the Apex Court held therein that a learner’s licence also is a licence within the meaning of the provisions of the Motor Vehicles Act, 1988, and when a vehicle is being driven by a learner subject to the conditions mentioned in the licence, he would not be a person who is not duly licensed. The Apex Court went to the extent of holding that even if there is a condition to the contrary in the contract of insurance, it would run counter to the provisions of the statute. The Apex Court also distinguished an earlier decision wherein there was an exclusionary clause in the insurance policy excluding a person holding a learner’s licence from driving the vehicle. Even in that regard, the Apex Court observed that the earlier decision does not create any binding precedent. 16. In the present case, the copy of the insurance policy shows that a person holding an effective learner’s licence was specifically permitted to drive the vehicle when not used for the transport of the goods at the time of the accident as such a person satisfies the requirement of Rule 3 of the Central Motor Vehicles Rules, 1989. Even the provision referring to the necessity of a person driving to have an effective driving licence does not have any specific exclusion clause about a person holding a learner’s licence. The only qualification is that such a person holding an effective driving licence should not be disqualified from holding or obtaining such licence. On the contractual obligations created by Ex.B-1-Insurance Policy, the principle laid down in SWARAN SINGH’s case (supra 2) squarely applies, more so, when it is not placed on record as to whether the offending lorry was carrying any goods or was empty at the time of the accident. The insurer being absolved from the liability by the Tribunal, therefore, has to be reversed. 17. Keeping in view the distance of time for which the respondents have to pay interest on the enhanced amount of compensation, it can be restricted to 6% per annum, while proportionate costs should of course, be paid on the entire amount. 18. Therefore, the award, dated 14.09.2001, in O.P.No.290 of 1998, on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Medak at Sanga Reddy, is set aside against the second respondent and is modified against the first respondent and accordingly, O.P.No.290 of 1998 is ordered granting a compensation of Rs.2,05,000/- against both the respondents jointly and severally, payable by them with interest thereon at 9% per annum on Rs.1,54,300/- and at 6% per annum on Rs.50,700/- from the date of the petition till the date of realization and proportionate costs. 19. The Civil Miscellaneous Appeal is ordered, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 1st February, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1037 of 2002 Date: 1st February, 2011 KL [1] 2009 ACJ 1298 [2] 2004 (3) SCC 297