IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.2224 of 2005 Between: United India Insurance Company Limited .. Appellant AND Puli Tirupathaiah & 4 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.2224 of 2005 JUDGMENT: The civil miscellaneous appeal is directed against the award in O.P.No.579 of 2003, on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Nellore, dated 12.05.2005. 2. The factual background for the appeal is that Ramakotamma, aged about 28 years, was going in tractor-trailer No.A.P.26/F-1928 along with other labourers on 28.02.2003, at about 9.00 a.m. when near Thummalapenta irrigation tank in the outskirts of Annagaripalem, the rash and negligent driving of the tractor in high speed resulted in three persons including Ramakotamma being thrown out of the trailer. Ramakotamma was run over by the tractor and due to her instant death, her husband and three minor children lost their dependency on the deceased and suffered physical and mental agony. Hence, they sought for a compensation of Rs.3,00,000/- from the owner and insurer of the tractor-trailer. 3. The owner of the tractor and the insurer denied the allegations of the claimants and the owner contended that his vehicle is covered by subsisting insurance including the risk of agricultural labourers. The owner also contended the driver to be possessing a valid driving licence and depended on his right to be indemnified by the insurer. The insurer claimed the claim to be excessive and exorbitant apart from putting the claimants to strict proof of all their allegations. 4. The Tribunal framed issues about the manner of the accident and the entitlement of the claimants to compensation and examined P.Ws.1 and 2 and R.W.1 and marked Exs.A-1 to A-6, B-1 and B-2 during enquiry. In the award, it firstly accepted the eye witness account of P.W.2 corroborated by the contents of Ex.A-1-First Information Report and Ex.A-5-Charge Sheet to conclude that the accident was due to the rash and negligent driving of the tractor. Going into the question of existence of a valid driving licence for the driver, the Tribunal noted that one J. Ramanaiah was stated to be the driver as per the charge sheet filed by the police, where as the licence number stated to be referring to him was stated by the Additional Licensing Authority, Kavali, to be standing in the name of J. Ramesh. However, the Tribunal found that the insurer did not appoint any surveyor to know the identity of the inmates of the tractor and nobody from the Regional Transport Authority, Nellore, was examined to prove the alleged discrepancy. The Tribunal also noted that the owner claimed the driver to be having a valid driving licence and the police also have not disputed the same in their charge sheet. Therefore, the Tribunal also concluded that both the respondents are jointly and severally liable to pay compensation to the claimants in the absence of any violation of the terms and conditions of the insurance policy. While assessing the quantum of compensation, the Tribunal, after referring to the principles governing the same and the precedents on the aspect, had assessed the earning capacity of the deceased at Rs.50/- per day as an agricultural labourer and after deducting 1/3rd towards her personal expenses, the annual contribution to the other family members was assessed at Rs.12,000/-. On applying a multiplier of 18 for the age of 28 years, the Tribunal considered Rs.2,04,000/- to be due towards loss of dependency and also awarded Rs.5,000/- towards loss of consortium, Rs.2,500/- towards loss of estate and Rs.2,000/- towards funeral expenses in accordance with the Second Schedule to the Motor Vehicles Act, 1988 (for short, “the Act”). A total compensation of Rs.2,13,500/- was awarded with interest at 9% per annum from the date of the petition till the date of realization. 5. The insurer challenges the said award in this appeal contending that 30 passengers were travelling in the tractor and trailer at the time of the accident as mentioned in Exs.A-1 and A-5, the First Information Report and the Charge Sheet, which showed clearly the violation of the terms and conditions of the Insurance Policy-Ex.B-1 absolving the insurer of any liability. The appellant also contended that when the passengers were travelling in the goods vehicle gratuitously or unauthorizedly, the insurer could not have been made liable and the driver was not proved to be having a valid driving licence in view of the endorsement of the Additional Licensing Officer, Nellore, and that also absolves the insurer of any liability when Ex.B-2-Endorsement of the Additional Licensing Authority, Kavali, was not disputed by the claimants. Application of multiplier 18 with reference to the Second Schedule to the Act is inappropriate in the petition under Section 166 of the Act and it is the age of the husband that should have been taken into account for assessing the relevant multiplier. Therefore, the insurer desired the excessive compensation granted to be reversed. 6. Sri T. Mahender Rao, learned standing counsel for the appellant/insurer and Smt. B. Anuradha, learned counsel for the claimants are heard and the owner of the tractor remained unrepresented before this Court. 7. The points that arise for consideration are, hence, about the joint and several liability of the insurer to pay just and adequate compensation and the quantum of such compensation. 8. Ex.B-1-Insurance Policy shows that separate premium was paid for six employees under the policy and, therefore, in addition to the owner and driver, the risk of six employees is also covered by Ex.B-1-Insurance Policy. It is true that Exs. A-1 and A-5, First Information Report and Charge Sheet, appear to be referring to more number of persons in the trailer with the charge sheet specifically stating 20 female coolies to be travelling in the trailer. Though the persons travelling in the trailer had exceeded the number of employees whose risk is covered by the insurance policy, in view of the decision of the Apex Court in NATIONAL INSURANCE CO. LTD. VS. ANJANA SHYAM AND OTHERS[1], the insurance company can still be made liable in respect of the number of passengers for whom insurance was taken in terms of the Act. If so, Ex.A-5-Charge Sheet shows that four persons were thrown out of the trailer due to the rash and negligent driving of the tractor out of whom Ramakotamma died and the other three were injured. Hence, there could not have been more claims than from these three injured persons and the legal representatives of Ramakotamma and if so, as the insurance policy covers the risk of six employees, the liability of the insurer cannot be negatived on that ground. 9. Coming to the existence of a valid driving licence for the driver of the vehicle, it is seen from Ex.A-4-Motor Vehicles Inspector’s Report that Ramanaiah was specified to be the driver and his driving licence number was also given. The same Ramanaiah was prosecuted by the police as the driver of the vehicle under Ex.A-5-Charge Sheet and the Statutory Investigating Agency can be presumed to have conducted a thorough investigation before prosecuting J. Ramanaiah as the driver of the vehicle involved in the accident at the relevant time. It is significant to note that the police did not prosecute Ramanaiah for either the absence of any licence or any defect in the licence and, therefore, it can also be assumed that the particulars specified in Ex.A-4-Motor Vehicles Inspector’s Report would have been verified by the police with reference to the identity of the driver and identity of his driving licence. It is true that Ex.B-2-Endorsement of the Additional Licensing Authority, Kavali, stated that the licence with the number specified in Exs.A-4 and A-5 stood in the name of one J. Ramesh. It is significant to note that both Ramanaiah and Ramesh were stated to be the sons of Venkateshwarlu who appears to be the owner of the tractor and trailer/first respondent to the claim, while it is not known whether Ramanaiah is also called by any other pet name. The positive circumstances arising from Exs.A-4 and A-5 cannot be considered overweighed by Ex.B- 2-Endorsement of the Additional Licensing Authority, Kavali, when none on behalf of the Additional Licensing Authority had been examined to enable the claimants to confront him on the question of identity and when R.W.1 examined on behalf of the insurer had no personal knowledge of the identity of the driver. 10. The liability of the insurer to justly and adequately compensate the dependents of the deceased Ramakotamma along with the owner of the offending vehicle, therefore, cannot be in doubt in the light of the finding of the Tribunal about the rash and negligent driving of the tractor leading to the accident being not seriously in dispute as a matter of fact. 11. Coming to the assessment of compensation, it is true that the assessment of the daily income of the deceased as an agricultural labourer at Rs.50/- per day appears to be on the conservative side even with reference to the minimum wages payable to agricultural labourers at about the relevant time, but it is to be noted that the claimants did not prefer any appeal or cross objections against the assessment of compensation by the Tribunal. While the basis for assessment, therefore, cannot be interfered with, the application of multiplier 18 with reference to the Second Schedule to the Act applicable to a petition under Section 163-A of the Act does not appear to be correct and in any petition under Section 166 of the Act, some other principles would have governed the assessment of the compensation. Another factor which is to be noted is that this Court has laid down in NEW INDIA ASSURANCE CO. LTD., VISAKHAPATNAM VS. NANEPALLI SWAMYNAIDU AND OTHERS[2] that in the event of the husband claiming compensation for the death of his wife, the Tribunal ought to consider the age of the husband for the purpose of applying the relevant multiplier, but not the age of the deceased. If the age of the husband stated in the claim petition to be 34 years were to be taken into account, the appropriate multiplier that is applicable as per SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER[3] would be 16. However, it is seen that in calculating the compensation on applying the multiplier of 18, the Tribunal had, in fact, applied a multiplier of 17 in arriving at the figure of Rs.2,04,000/- towards loss of dependency and, therefore, in all, a sum of Rs.12,000/- ought to be reduced from that sum. Insofar as the loss of consortium, loss of estate and funeral expenses are concerned, it is true that whatever granted was less than what was permitted by SARLA VERMA’s case (supra 3), but as already stated, the claimants did not themselves challenge the assessment of the compensation. The rate of interest also is sought to be questioned by Sri T. Mahender Rao, learned standing counsel for the appellant/insurer, but it is not shown that it was not the prevailing rate of interest at the relevant time of the accident or the award. Therefore, at this distance of time, any interference with the rate of interest will reduce the real compensation to be received by the claimants in view of the continuing inflation and decreasing value of the rupee. Therefore, without interfering with the compensation awarded in any other respect, it would be suffice to reduce the same by Rs.12,000/- in tune with the decision relied on by the learned standing counsel for the appellant/insurer. 12. In the result, the award, dated 12.05.2005, in O.P.No.579 of 2003, on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Nellore, is modified by reducing the compensation awarded by Rs.12,000/- and otherwise confirming the same in all other respects. The Civil Miscellaneous Appeal is allowed, accordingly, in part, without costs. _____________________ G. BHAVANI PRASAD, J Date: 26th August, 2011 Note: Issue C.C. by 02.09.2011. (B/o.) KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.2224 of 2005 Date: 26th August, 2011 KL [1] AIR 2007 SC 2870 [2] 2005 (4) ALT 214 [3] 2009 ACJ 1298