IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SEVENTEENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.1104 of 2007 Between: Smt. P. Chandramma & another .. Appellants AND C.R.V. Rao & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.1104 of 2007 JUDGMENT: The civil miscellaneous appeal is directed against the award in O.P.No.2122 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-V Additional Metropolitan Sessions Judge (Mahila Court)-cum-XIX Additional Chief Judge, City Criminal Courts, Hyderabad, dated 30.12.2006. 2. The factual background for the appeal is that P. Nagesh, working as a helper-cum-supervisor in M/s. Venkata Reddy Vegetables Commission Agent on a monthly salary of Rs.4,000/-, was going on a motor cycle as a pillion rider on 22.05.2005 when the motor cycle fell on the road due to the rash and negligent driving by the rider near Shivarampally. Nagesh was shifted to Srikanth Raghavendra Hospital and then to Osmania General Hospital for treatment to multiple fractures and grievous injuries sustained in the accident. He died, while undergoing treatment, on 25.05.2005. The parents of Nagesh sued the owner and insurer of the motor cycle for a compensation of Rs.5,00,000/- for the death of their only son aged 20 years. 3. The owner of the motor cycle remained ex parte, while the insurer put the claimants to strict proof of all their allegations and contended that the motor cycle driver had no valid driving licence and the motor cycle had no insurance coverage. In any view, the pillion rider’s risk is not covered by the insurance policy. 4. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimants to compensation and examined P.Ws.1 to 3 and marked Exs.A-1 to A-8 and B-1 during the course of enquiry. 5. The Tribunal rendered the impugned award firstly accepting the claims of the eye witness-P.W.2 corroborated by Ex.A-1-First Information Report and Ex.A-3-Charge Sheet to conclude that the accident occurred due to the rash and negligent driving of the motor cyclist. The Tribunal took the age of the deceased as 20 years and the age of the mother as 41 years for purposes of computing the compensation and as against the evidence of P.W.3 about paying a monthly consolidated pay of Rs.4,000/- to the deceased, as stated by him in Ex.A-8-Salary Certificate, the Tribunal considered it probable that Rs.3,000/- should be taken as the monthly salary and further considered that 1/3rd of his income should be taken as loss of further income for the parents. Applying a multiplier of 14 as per the Second Schedule to the Motor Vehicles Act, 1988 (for short, ‘the Act’), the Tribunal arrived at loss of dependency of Rs.1,68,000/- and in addition, it granted Rs.5,000/- each to the parents towards loss of love and affection. The Tribunal considered Ex.B-1-Insurance Policy to be not showing any term or condition showing any absence of insurance coverage for the pillion rider and, therefore, fastened the liability jointly and severally to both the respondents to pay the compensation with interest at 7% per annum. The Tribunal also directed the manner of apportionment and disbursement of the compensation. 6. The claimants preferred the present appeal contending that the Tribunal should have accepted the income at Rs.4,000/- per month, as stated in Ex.A-8-Salary Certificate and by P.W.3, and it should have applied a multiplier of 15 as per the Second Schedule to the Act. The Tribunal should have also granted medical expenses due to the suffering undergone by the deceased for four days in the hospital and should have also granted Rs.15,000/- towards loss of estate, damages towards pain and suffering, etc., and it should have granted the entire compensation as claimed. 7. Sri C. Mohan Prakash, learned counsel for the appellants and Sri G. Subhash, learned counsel representing Smt. A. Anasuya, learned standing counsel for the second respondent are heard, while the first respondent is unrepresented before this Court. 8. Insofar as the responsibility for the accident with the rider of the motor cycle due to his rash and negligent driving, as concluded by the Tribunal, is concerned, there was no cross appeal or cross objections from either respondent to deviate from the inferences drawn by the Tribunal from the uncontroverted evidence of P.W.2 and the unchallenged contents of the First Information Report and the Charge Sheet, Exs.A-1 and A-3, supported by Ex.A-2-Copy of the Inquest Report, Ex.A-4-Certified copies of statements of witnesses, Ex.A-5-Certified copy of Panchanama of the scene and rough sketch and Ex.A-6-Copy of the Motor Vehicle Inspector’s Report. The opinion of the independent mediators for the inquest under Ex.A-2, the certification of the absence of any mechanical defects in the vehicle by the Motor Vehicle Inspector’s Report-Ex.A-6 and the other documents further strengthen the conclusion of the Tribunal in this regard. 9. The ownership of the vehicle with the first respondent and its subsisting insurance with the second respondent were not in dispute, but the conclusion of the Tribunal about the liability of the insurer to compensate the owner of the liability in respect of the pillion rider is sought to be questioned by the learned counsel for the insurer during arguments, but firstly, it has to be noted that the conclusion of the Tribunal about the prima facie evidence disclosed by the insurance policy-Ex.B-1 about two persons being covered by the insurance policy thereby including the pillion rider, was not challenged by the insurer in any separate appeal or cross objections. That apart, Ex.B-1-Insurance Policy shows that the vehicle was insured for a seating capacity of two and the package policy for the motor cycle was in force at the time of the accident covering liability for death or bodily injury to the extent of such amount as is necessary to meet the requirements of the Act. When the policy, thus, appears to cover the liability in respect of two persons, exclusion of a pillion rider may not be consistent with the terms and conditions of the accepted liability by the policy. 10. Sri G. Subhash, learned counsel for the insurer invited attention to UNITED INDIA INSURANCE CO. LTD., SHIMLA VS. TILAK SINGH AND OTHERS[1], wherein the Apex Court opined that the observations in NEW INDIA ASSURANCE CO. LTD. VS. ASHA RANI[2] should apply with equal force to gratuitous passengers in any other vehicle also and, therefore, the insurer owed no liability to the injuries suffered by the pillion rider under a statutory insurance policy which did not cover the risk of death or bodily injury to the gratuitous passenger. The policy herein is a package policy and it was not stated to be an act policy. Even otherwise, the discussion in ASHA RANI’s case (supra 2) was noted, by the Apex Court itself, to be with reference to carrying passengers in a goods vehicle, wherein, the Apex Court differed with its earlier decision in NEW INDIA ASSURANCE CO. VS. SATPAL SINGH[3]. The vehicle herein is not a goods vehicle and when the liability for the pillion rider is not sought to be fastened by inference of non-exclusion of gratuitous passengers under the Act, but because of specific coverage by the insurance policy of the seating capacity of two persons for the vehicle, the liability of the insurer could not have been negatived with reference to either ASHA RANI’s case (supra 2) or the terms and conditions of the insurance policy. The question of the status of travel of the deceased on the vehicle, therefore, cannot assume significance on the terms and conditions of Ex.B-1-Insurance Policy herein, as distinguished from the facts under consideration before the Apex Court. 11. That apart, the Insurance Regulatory and Development Authority, in its circular, dated 16.11.2009, referred to the wording of the standard motor package policy, also called a comprehensive policy, in respect of two wheelers etc., under which the terms and conditions in Section II in respect of liability to third parties obligates the insurer to indemnify the insurer in respect of death or bodily injury to any person including occupants carried in the vehicle, provided such occupants are not carried for hire or reward. The authority opined the provision to be in tune with its earlier circulars and specifically referred to a pillion rider carried on a two wheeler to be covered by the standard motor package policy. The advice by the authority to all general insurers to faithfully comply with its circulars in this regard was held in precedents from this Court to be binding on the insurers and to have validity and effect in considering the liability of the insurer, vis-à-vis, a third party/a pillion rider. Therefore, even in that view, the liability of the insurer cannot be in question at this stage. 12. Coming to the quantum of compensation, the acceptance of the age of the mother of the deceased as 41 years or the avocation of the deceased as an employee under a Vegetable Commission Agent or the age of the deceased at 20 years or his being the only son of his parents are not in dispute. Though a feeble attempt was made by the learned counsel for the insurer to question the conclusions of the Tribunal in this regard, such objections are not entertainable in this appeal by the claimants in the absence of any challenge by the insurer by any appeal or cross objections. 13. The age of the mother at 41 years should have made the Tribunal apply a multiplier of 14 even as per SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER[4] and the quantum of income arrived at by the Tribunal at Rs.3,000/- per month cannot be disturbed in this appeal in the absence of any strong grounds to the contrary on any such broad human probabilities arising out of the evidence on record. However, the deduction towards personal and living expenses in respect of the death of the bachelor in a claim by his parents could have been only 50% and not 2/3rds in view of the principle laid down in SARLA VERMA’s case (supra 4) and if so, the monthly loss of future dependency should have been assessed at Rs.1,500/- per month. The compensation was, therefore, underestimated by a sum of Rs.84,000/- by the Tribunal. In addition, while no interference need be made at this distance of time in respect of what was awarded towards loss of love and affection to the parents, the amounts permissible towards loss of estate and funeral expenses as per SARLA VERMA’s case (supra 4) at Rs.5,000/- each also should be granted and if so, the total compensation to be enhanced comes to Rs.94,000/-. Interest on the enhanced compensation can also be at 7% per annum as awarded on the original compensation which was not shown to be in any manner deviant from the then prevailing rate of interest. Therefore, the award has to be modified accordingly. 14. In the result, the award, dated 30.12.2006, in O.P.No.2122 of 2005, on the file of the Motor Accidents Claims Tribunal-cum-V Additional Metropolitan Sessions Judge (Mahila Court)-cum-XIX Additional Chief Judge, City Criminal Courts, Hyderabad, is modified by granting a further compensation of Rs.94,000/- with interest thereon at 7% per annum from the date of the petition till the date of payment or deposit in addition to the compensation already awarded by the original award. No further directions need be given at this distance of time regarding disbursement of the compensation and the enhanced portion shall also be shared between the claimants in the same proportion in which the original compensation was directed to be apportioned by the impugned award. The Civil Miscellaneous Appeal is allowed in part, accordingly, without costs. ___________________ G. BHAVANI PRASAD, J Date: 17th October, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.1104 of 2007 Date: 17th October, 2011 KL [1] (2006) 4 Supreme Court Cases 404 [2] (2003) 2 SCC 223 [3] (2000) 1 SCC 237 [4] 2009 ACJ 1298