HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A. No. 3634 of 2002 DATED: 05.08.2010 Between: Munigala Uma Devi and three others .. Appellants/ Claimants And 1. Gajula Laxman 2. Ravi Kumar Patel 3. United India Insurance Co. .. Respondents JUDGMENT:- This Civil Miscellaneous Appeal is directed against the order, dated 18.01.2002 made in O.P. No. 238 of 1997 whereby the learned District Judge, Karimnagar, having considered the evidence both oral and documentary, allowed the petition in part directing respondent Nos.1 and 2 to pay a sum of Rs.77,000/- to the petitioners with joint and several liability and interest thereon at 9% per annum from the date of the petition till realisation with proportionate costs, and dismissed the rest of the claim against respondent Nos.1 and 2 and the entire claim against respondent No.3-Insurer. The facts of the case in brief are that the 1st appellant is the widow and appellant Nos.2 to 4 are minor children of the deceased – Munigala Ramulu. Respondent No.1 is the driver, respondent No.2 is the owner of lorry bearing registration No.CPV 1111 and respondent No.3 is the insurer of the lorry. On 30.09.1995, at about 06.30 P.M., the deceased along with certain goods boarded the lorry at Karimnagar to proceed to Basanthanagar and when the lorry reached Narsaiahpalli at about 7.00 P.M., respondent No.1 drove the same in a rash and negligent manner and at high speed and dashed against a stationed lorry bearing No.APR 3388 which was parked on the left side of the road, as a result, the deceased sustained compound fracture shaft to left femur and fracture on left side 5, 6 and 8 ribs. The deceased was shifted to Sudha Hospital, Karimnagar, wherein he took treatment as in-patient for a period of 20 days under Dr.I.Sridhar Rao, an Orthopaedic Surgeon, and on 20.10.1995, an operation was performed on his fractured leg femur and an inter middlary nail was also inserted. The deceased incurred huge expenditure towards his treatment and also could not attend his duties for a period of 19 months. The deceased originally filed O.P. claiming a total compensation of Rs.1,00,000/- from the respondents for the injuries sustained by him. While he was undergoing treatment, he died on 21.3.1998. After his death, the appellants herein, who were impleaded as his legal representatives, filed the O.P. claiming compensation of Rs.6,00,000/- . Respondent No.3 filed counter stating that the deceased, at the time of the accident was travelling in the goods vehicle as a passenger and the same was a clear breach of statutory provisions and conditions of permit and insurance policy. It is further stated that the Insurance Policy issued by respondent No.3 in favour of respondent No.2 does not cover the risk of passengers travelling in the lorry, as such, respondent No.3 is not liable to pay any compensation to the claimants. Respondent No.3 filed additional counter denying that the deceased died of injuries sustained in the accident that occurred on 30.09.1995. It is further stated that the death of the deceased cannot be caused due to the injuries sustained by him and the petitioners – appellants with dishonest intention, claimed for compensation alleging that the death was caused due to the injuries received by the deceased in an accident. The Motor Accidents Claims Tribunal, based on the pleadings, framed the following issues: i) Whether the accident took place due to rash and negligent driving of the vehicle i.e. lorry bearing No. CPV – 1111 by its driver? ii) Whether the petitioners are entitled to claim compensation from the respondents, and if so, to what amount and from whom? Additional Issues: i) Whether the death of the deceased - Munigala Ramulu, who died on 21.03.1998, has got any connection with the injuries sustained by him prior to his death in the Motor Vehicle Accident occurred on 30.09.1995? ii) Whether the petitioners-appellants are entitled to any compensation on account of the death of the deceased - Munigala Ramulu? The petitioners, to substantiate their claim for compensation, examined PWs.1 to 4 and got marked Exs.A1 to A10. RW1 was examined and Ex.B1 was marked on behalf of respondent No.3. The Tribunal, after considering the evidence both oral and documentary, allowed the petition in part as stated supra. PW1, who is the wife of the deceased, deposed that her husband sustained injuries in a Motor vehicle accident occurred on 30.09.1995. Immediately, after the accident, her husband took treatment as in-patient in a private Nursing Home by name Sudha Hospital, Karimnagar. Dr.I.Sreedhar Rao, an Orthopaedic Surgeon, performed operation on the fractured left leg of her husband and inserted a steel rod. She further deposed that her husband sustained injuries all over his body including fractures on 4 left-side ribs. They incurred Rs.50,000/- towards treatment of her husband. Her husband, even after taking treatment, took bed rest for a period of one year and seven months, and he was not completely cured of his injuries, and on 21.03.1998, while he was being taken to medical check up in a jeep, he died of the injuries on his left leg. He was earning Rs.3,500/- p.m. by the time of his death. Due to his death, herself and her children lost earnings. In cross-examination, she denied a suggestion that the deceased did not die due to injuries sustained by him in an accident that occurred on 30.09.1995 and died due to some other cause. She stated that after the accident, the deceased did not join duty. PW2 – a co-passenger, deposed that he boarded the lorry bearing No. CPV 1111 along with the deceased at Chowrastha of Court Building, Karimnagar and at about 6.00 or 6.30 p.m., the driver drove the lorry at high speed and in a rash and negligent manner and dashed against the stationed lorry at the bus stop of Narsaihpalli village on the way to Peddapalli. In the accident, the deceased sustained fractures on his left leg and also injuries. In the cross- examination, he denied a suggestion that the accident occurred was not due to the negligence on the part of the driver. PW3, Civil Assistant Surgeon, deposed that he conducted autopsy over the dead body of the deceased and found external and internal injuries and opined that the deceased died of haemorrhage due to foreign body reaction, septic emboli leading the cardio respiratory failure and death. PW4, factory Manager, deposed that the deceased worked in their factory as a casual labour and he was drawing salary of Rs.4,888.90 and in addition to it, he was paid bonus at 20% on the net salary. In cross-examination, he deposed that the deceased worked in their factory till 20.03.1998. RW1, Assistant Administrative Officer in United Insurance Company, Karimnagar deposed that the 3rd respondent-Insurance company issued Insurance Policy in favour of lorry bearing No. CPV – 1111 which was valid up to 23.04.1996. The deceased travelled in the lorry as a passenger at the time of the accident, as such, the policy issued by the 3rd respondent does not cover any risk, as such, the Insurance Company is not liable to pay any compensation to the petitioners-claimants, who are the legal representatives of the deceased. The learned counsel for the appellants-claimants submitted that the trial Court erred in not granting the compensation as prayed for and did not take into consideration Ex.A6 – post mortem examination report and Ex.A7 – final opinion issued by PW3. Heard the learned counsel for both the parties and perused the material placed on record. Evidently, there is no dispute with regard to the occurrence of accident, sustaining of injuries by the deceased and his death. It is also not in dispute that the United Insurance Company is not liable to pay compensation inasmuch as the deceased travelled in the lorry as a gratuitous passenger, and no liability can be fastened to it as per the terms and conditions of the Insurance Policy. It is also not in dispute that as per RW1, Assistant Administrative Officer of United Insurance Company, Ex.B7 – Insurance Policy issued in favour of the owner of the lorry, does not cover the risk of the persons, who travel in the lorry other than the driver and the cleaner, but the only grievance of the claimants is that the trial Court has not fixed the quantum of compensation adequately. The accident occurred on 30.09.1995, and admittedly, the deceased died on 21.03.1998. PW1 deposed that her husband took bed-rest for a period of one year and seven months after the accident and did not attend his duty, whereas the evidence of PW4 - Factory Manager, reveals that the deceased worked in the factory till 20.03.1998. Hence, there is contradiction in the evidence of PWs.1 and 4. According to the evidence of PW4, the deceased worked till his death which means that he was able to resume his work even after he underwent operation. Moreover, as per Ex.A10 – salary certificate, the deceased was drawing salary of Rs.4,888.90 as on 21.03.1998 besides being paid bonus at 20% on the net salary, whereas, the evidence of PW1 - the wife of the deceased, goes to show that during his life time her husband was drawing a sum of Rs.3,500/- p.m. which is in contradistinction to the evidence of PW4. The evidence of PW4 - Factory Manager is cogent, trust worthy and reliable and the same is not denied or challenged by the appellants-claimants. Further, according to the opinion of PW3 – Civil Assistant Surgeon, the deceased died of haemorrhage due to foreign body reaction, septic emboli leading to the failure of cardio respiratory and his death, and he issued Ex.A6 – Post mortem examination report to that effect. The foreign body reaction leading to the failure of cardio respiration might be because of the continuous work of the deceased immediately after the operation or due to any other reason. Therefore, this Court is of the view that the amount of compensation awarded by the trial Court taking into consideration the evidence on record, appears to be quite justifiable, and I see no reason for enhancing the compensation, as such, the impugned does not call for interference from this Court. For the foregoing reasons, the Civil Miscellaneous Appeal fails and the same is accordingly, dismissed. There shall be no order as to costs. _________________ B.N. RAO NALLA, J. 5th August, 2010 bcj