IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SIXTEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal Nos.3508 of 2004 and 4392 of 2004 C.M.A.No.3508 of 2004 Between: The National Insurance Company Limited, Represented by its Divisional Manager, Secunderabad .. Appellant AND Ganta Sambasiva Rao and others .. Respondents C.M.A.No.4392 of 2004 Between: Ganta Sambasiva Rao and others .. Appellants AND The National Insurance Company Limited, Represented by its Divisional Manager, Secunderabad .. Respondents COMMON JUDGMENT: These two appeals are directed against the award in MVOP. No.611 of 1999 on the file of the Motor Accidents Claims Tribunal- cum-II Additional District Judge, Guntur, dated 30-04-2004. Jasti Saraswathamma, her husband and two minor daughters went on pilgrimage since 20-11-1998 and on 24-11-1998 after visiting Srisailam temple, they boarded jeep AP 21 U 5070 to visit the surrounding places paying a fare of Rs.20/- per head. Some other persons also boarded the jeep and when the jeep reached M & W Division office, Sundipenta, the jeep driven rashly and negligently hit against an electric pole on the left road margin in an attempt by the driver to avoid a hit to a cow. Saraswathamma received grievous and multiple injuries, while other passengers also received some injuries and when all of them were taken to Government Hospital, Srisailam Project, Saraswathamma was declared dead. On the statement of her husband, Crime No.75 of 1998 was registered by the police and hence, the claimants sought for a compensation of Rs.12,00,000/- including no fault liability from the owner and insurer of the jeep. They claimed that the deceased aged 40 years was earning Rs.8,200/- per month as an employee in the State Bank of India, Mangalagiri branch and was contributing her income entirely to the family. Though the claimants assessed the compensation to which they were entitled at Rs.22,30,000/-, they restricted their claim to Rs.12,00,000/- with interest at 18% p.a. While the owner of the jeep remained ex parte before the Tribunal, the insurer contested the claim denying the allegations of the claimants and contending that it did not receive any information about the accident and the driver of the jeep did not possess any valid driving licence. The terms and conditions of the insurance policy were violated and there was no negligence or rashness on the part of the jeep driver. The jeep had no valid permit and therefore, the insurer, who also sought for permission under Section 170 of the Motor Vehicles Act, desired the claim to be negatived. The Tribunal framed issues about the manner of the accident and entitlement of the claimants to compensation and during enquiry, it examined PWs.1 and 2 and RWs.1 and 2 and marked Exs.A.1 to A.7 and B.1 to B.3. The Tribunal rendered the impugned award, firstly referring to Ex.A.1-First Information Report, Ex.A.2- charge sheet, Ex.A.3- M.V.I. report and Ex.A.4-inquest report as corroborating the claims of the husband as PW.1, who was also travelling by the same vehicle and was injured. In the absence of any contrary evidence, the Tribunal concluded that the accident occurred due to the rash and negligent driving of the jeep driver killing Saraswathamma and injuring others. Coming to the driver of the jeep holding a valid driving licence, the Tribunal referred to Ex.B.1 driving licence extract spoken to by RW.1, an official of the Regional Transport Authority, Kurnool and also the evidence of the official of the insurer, who deposed as RW.2 about the policy-Ex.B.2 covering only 5 + 1 persons as passengers including the driver. The Tribunal noted that the insurer was admitted to have not issued any notice to the owner of the jeep to produce the particulars of his driver and his licence. The Tribunal also noted that the driver admittedly had a licence and any overloading of the vehicle will not be a ground to reject the claim for compensation. The Tribunal further noted that the insurer did not take any steps to call the driver to depose and the M.V.I’s report-Ex.A.3 was also referred to as specifying the driver to be having a valid licence. The burden of proof on the insurer was, hence, considered to have not been discharged and the respondents 1 and 2 were, hence, considered to be jointly and severally liable to compensate the claimants. Coming to the quantum of compensation, the Tribunal referred to Ex.A.6-salary certificate and the gross salary of Rs.8,809.32ps. was considered as representing the total income and the substantive salary of Rs.6,780/- alone was taken into consideration for the purpose of assessing the loss of dependency after deducting 1/3rd out of the same towards personal expenses of the deceased. Applying a multiplier of 11 for the age of 40 years, the Tribunal considered the total compensation payable to be Rs.5,96,640/- and refused to award any amount towards loss of consortium or loss of estate as the husband is working in the Railway Department. On the compensation awarded, the Tribunal directed the interest to be paid at 9% p.a. from the date of petition till realization and further directed the manner in which the apportionment and disbursement of the compensation should be done. The insurer challenged the said award in C.M.A.No.3508 of 2004 contending that when the vehicle was insured only for 5 + 1 passengers and when 12 passengers were admittedly travelling in it at the time of the accident, the violation of the terms and conditions of the policy was evident. The licence of the driver of the jeep was shown to be improper by Ex.B.1 and RW.1 and the Tribunal failed to consider the same, which violation erases any liability. The husband cannot be considered in any manner to be dependent on the wife, and hence, the insurer desired the impugned award to be reversed. The claimants also challenged the award in C.M.A.No.4392 of 2004 contending that the entire salary of Rs.8,809/- should have been considered as the basis for assessing the loss of dependency and the age of the deceased being only 39 at the time of the death, the minimum multiplier adopted should have been 12. The Tribunal should have granted the entire compensation of Rs.12,00,000/- as claimed and hence, they desired the balance claimed by them also to be awarded. The point for consideration in these appeals are firstly about the responsibility for the accident, secondly, about the effect of any defect in the driving licence or overloading of the vehicle on the liability of the insurer and thirdly, about the quantum of just and adequate compensation to which the claimants are entitled. Insofar as the responsibility for the accident is concerned, even the insurer in its appeal did not specifically challenge the conclusion of the Tribunal based on the evidence of PW.1 corroborated by Exs.A.1 to A.5 that the accident occurred due to the rash and negligent driving of the jeep and the respondents did not produce any evidence to the contrary. The owner of the vehicle remained ex parte before the Tribunal and this Court and no steps were taken to examine the offending driver to prove the circumstances under which the accident had happened nor was there any attempt to examine any other eye-witness in this regard. Admittedly there was proof of other passengers travelling in the jeep even if there was no eye witness at and around the scene of offence by that time but no such passenger was also examined. While the responsibility for the accident being with the driver of the jeep makes the owner and insurer of the jeep vicariously liable to compensate the dependents of the deceased travelling in the jeep, Ex.B.2-insurance policy also further corroborates the claim of the 1st respondent to the claim being the owner and the 2nd respondent to the claim being the subsisting insurer at the relevant time. It is true that Ex.B.2-insurance policy covers 5 + 1 persons including the driver and even according to Ex.A.1-the earliest version there were number of passengers travelling in the jeep including the deceased, her husband and two children. The investigation by the statutory agency showed as per Ex.A.2- charge sheet that while Saraswathamma died in the accident, six other pilgrims sustained simple injuries. The M.V.I. report in Ex.A.3 did not even specify any other persons being injured apart from the death of Saraswathamma and therefore, the maximum claims that would have been arising out of the accident against the owner or insurer or the driver could have been 7 including the driver while the liability in respect of six persons was agreed to be indemnified by the insurer. Sri G.L. Nageswara Rao, learned counsel for the claimants, submitted that except the claim made for the death of Saraswathamma, no other claims have been made against the driver or owner or the insurer of the vehicle in respect of this accident and at any rate, he can state on instructions that the claimants, who are three in number, who were also travelling in the jeep and were injured, did not prefer any claim. If so, even though the terms and conditions of Ex.B.2- insurance policy might have been violated due to the overloading of the vehicle, the principle laid down by the Apex Court in National Insurance Company Limited v. Anjana Shyam[1] should apply to the facts of the case. The Apex Court has laid down that the purpose of the Motor Vehicles Act being to bring benefit to the third parties who are either injured or dead in an accident, which is serving a social purpose, it would be just to hold in such cases that the insurance company would be bound to cover the higher of the various amounts and will be compelled to pay the higher of the amounts awarded to the extent of the number of passengers covered by the insurance policies. As the present claim is perfectly within the indemnification undertaken by the insurer in respect of the passengers under Ex.B.2-insurance policy, even assuming that the allegations of the insurer about the overloading are true, the same will not in any away detract from the insurer being liable to justly and adequately compensate the dependents of Saraswathamma. Coming to the question of a subsisting and valid licence, the evidence of RW.1 from the Regional Transport Authority, Kurnool is that they issued light motor vehicle non-transport licence to B. Raja Reddy and he tried to contend that the driver was not permitted to drive Mahendra jeep which is a transport vehicle. However, he had to admit that he has no particulars of the offending jeep. He was only speaking about there being no information with them to show that the driver had a driving licence for a heavy transport vehicle. He admitted that the driver could have renewed his licence or obtained a licence for driving a transport vehicle in any other office of the Regional Transport Authority in the State. RW.2, the officer of the insurer, while admitting that they did not issue any notice to the owner of the jeep to give the particulars of the driver and his licence, also admitted that they did not issue any such notice even to the driver. The evidence of RW.2 is not based on any personal knowledge in this regard and while the vehicle was described as contract carriage or stage carriage vehicle in Ex.B.2-insurance policy, Ex.B.3 mentioned the light motor vehicle jeep non-transport to have been changed into light motor transport with effect from 21-01-1997. While the accident occurred on 25-11-1998, Ex.B.1 or the evidence of RW.1 does not exclude the scope for the driver obtaining a driving licence for driving a transport vehicle in the meanwhile and significantly, it is seen from the M.V. Inspector’s report-Ex.A.3 also that the driver had a non-transport vehicle driving licence under the same number as mentioned in Ex.B.1. However, as even the jeep in question was originally a non- transport vehicle, the owner or the driver cannot be attributed with any conscious violation of the terms and conditions of the insurance policy with the knowledge of the ineligibility of the driver to drive the vehicle in question and at any rate, the lapse, if any, may entitle the insurer to recover any compensation paid to the claimants from the owner of the vehicle, if he is so entitled, but cannot operate as a disadvantage to the third parties for whose benefit the beneficial provisions have been enacted in the Motor Vehicles Act. The claim, therefore, cannot be negatived on the ground of any defect in the number of passengers being carried in the vehicle or the driving licence of the driver of the jeep. Coming to the quantum of compensation, the age of the deceased as 40 years by about the time of death is not seriously in dispute and whether it was 39 years or 40 years, the same multiplier would apply as per Sarla Verma and others v. Delhi Transport Corporation[2] and it will be 15. So far as the income of the deceased is concerned, Ex.A.6-salary certificate shows gross salary of Rs.8,809-32ps. and no deductions were shown in the salary certificate issued by the State Bank of India, the employer of the deceased. In Sarla Verma and others v. Delhi Transport Corporation (stated supra), it was also stated that when the deceased had a permanent job and was below 40 years, in fact, there should be an addition of income towards future prospects in assessing the compensation and if it was between 40 and 50 years, the addition would be minimum 30%, and at 50%, if the deceased was aged below 40 years. Even if considerations of such prospects in future career have not been taken into account, the Tribunal assigned no specific reason as to not take into account the salary as disclosed by Ex.A.6. While Ex.A.7-SSC certificate of the deceased shows that she did not complete 40 years by the time of the accident, the assessment of loss of dependency should be, therefore, on the salary applying a multiplier of 15. If the salary is rounded off to Rs.8,800/-, the loss of dependency comes to Rs.15,84,000/-. While the claimants would also be entitled to a further sum of Rs.20,000/- towards loss of estate, funeral expenses and loss of consortium as per Sarla Verma and others v. Delhi Transport Corporation (stated supra), that takes the compensation payable to around Rs.16,00,000/-. However, the claimants sought for a compensation restricted only to Rs.12,00,000/- before the Tribunal and before this Court also and if the future prospects were to be taken into account, they would have been entitled to a much higher sum than Rs.16,00,000/-. The compensation assessed by the Tribunal is, hence, clearly conservative and there was no reason to deny the loss of estate and loss of consortium without any reason. The Tribunal adopted interest at 9% p.a., but in view of the length of time for which the interest has to be paid and the quantum that is to be paid on the compensation now being enhanced, it will be reasonable and just to confine the rate of interest to 6% p.a., keeping in view that the insurer also is a custodian of public funds. Though the Apex Court did not lay down any particular principle governing the exercise of judicial discretion regarding interest in Sarla Verma and others v. Delhi Transport Corporation (stated supra), in respect of the accident that occurred in 1988, which was under consideration in that case, the Apex Court awarded interest at 6% p.a. only. Therefore, interest on the compensation should be confined to 6% p.a. Under the circumstances, the compensation is to be enhanced to the amount claimed by the claimants in assessing which the employment of the 1st claimant himself may not be of great relevance. While even an unemployed house wife is now assessed to be capable of earning Rs.3,000/- per month as per the decision of the Apex Court and when the two minor daughters of the deceased need to be brought up, educated and settled in life by their widowed father, the compensation cannot be reduced on the ground of his employment. If the mother had been alive, there can not be an iota of doubt that both the father and mother would have contributed equally to the upliftment of the daughters in their future. Therefore, the objections of the insurer against the entitlement of the claimants to compensation should fail and the claimants should be awarded the compensation as claimed in modification of the award in question. In the result, the award dated 30-04-2004 in MVOP.No.611 of 1999 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Guntur, is modified by granting a compensation of Rs.12,00,000/- with interest thereon at 6% p.a. from the date of petition till realization with costs. The apportionment of the compensation between the claimants shall be in the ratio of Rs.5,00,000/- each to the claimants 2 and 3 and Rs.2,00,000/- to the 1st claimant including the loss of consortium. No further directions need be given regarding the disbursement of the compensation at this distance of time. Even the claimants 2 and 3 would have become majors now by efflux of time. Accordingly, C.M.A.No.3508 of 2004 is dismissed without costs and C.M.A.No.4392 of 2004 is allowed without costs. _____________________ G. BHAVANI PRASAD, J Date: 16-09-2011 Ksn [1] AIR 2007 SC 2870 [2] 2009 ACJ 1298