IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. NO.1734 OF 2009 Between : The New India Assurance Company Ltd., .... APPELLANT AND Joga Appala Narasamma and others. …RESPONDENTS THE HON'BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. NO.1734 OF 2009 JUDGMENT: This appeal is filed by the Insurance Company challenging the award in O.P.No.168 of 2007, dated 05.11.2008, on the file of VIII Additional District and Sessions Judge (Fast Track Court)-cum-Motor Accidents Claims Tribunal, Viskhapatnam, whereunder the Tribunal awarded an amount of Rs.3,92,000/- with interest at the rate of 7.5% per annum in favour of the respondents 1 to 4 herein (claimants). 2. The appellant obtained permission under Section 170 of the M.V. Act and contested the claim on merits. 3. Claimant No.1 is the wife of Joga Narasinga Rao (hereinafter referred to as ‘the deceased’) and claimants Nos.2 to 4 are his children. Respondent No.5 herein (owner of the vehicle) was respondent No.1 in the O.P. 4. On 03.10.2005 the deceased engaged an Auto bearing No.AP- 31-X-4994, belonging to the respondent No.5 herein to transport his sheep for sale in the Tallapalem weekly shandy. The deceased was also traveling in the said auto along with the sheep. On account of rash and negligent driving of the auto, and on account of sudden application of brakes, the vehicle turned turtle, due to which the deceased sustained grievous injuries on his head and chest and he died while undergoing treatment in K.G.Hospital, Visakhapatnam. The claimants therefore, filed the O.P. and sought for a compensation of a sum of Rs.2,00,000/-. Respondent No.5 being the owner of the vehicle filed his counter and denied the allegations in the claim petition. 5. The appellant insurance company also filed a separate counter denying the allegations made in the claim petition. It was also pleaded that the amount of Rs.2,00,000/- claimed was excessive. 6. Based on the pleadings the Tribunal formulated the issues as hereunder: 1) Whether the deceased died due to the rash and negligent driving of the vehicle (auto); 2) Whether the claimants were entitled for compensation, if so to what amount and from which of the respondents? 3) To what relief ? 7. On consideration of evidence on record, the Tribunal awarded Rs,3,84,000/- towards loss of dependency in addition to Rs.1000/- towards transportation of the deceased to the hospital; Rs.2000/- towards funeral expenses; Rs.5000/- towards loss of consortium in favour of the first claimant. The Tribunal rejected the claim towards loss allegedly sustained due to the death of the sheep. The Tribunal also negatived the claim towards pain and suffering. In all the Tribunal awarded a sum of Rs.3,92,000/-. 8. Aggrieved by the said award the insurance company has filed the appeal. 9. Heard both sides. 10. Learned counsel for the appellant insurance company would contend that the deceased was an unauthorized passenger in a goods vehicle, therefore, the appellant insurance company cannot be fastened with the liability to pay the compensation to the claimants. He would further submit that the claim itself was for Rs.2,00,000/-, therefore, the order awarding excessive of amount of Rs.3,92,000/- is not legal. 11. Learned counsel for the appellant relied on a Judgment of the Apex Court in UNITED INDIA INSURARNCE COMPANY LIMITED V PATRICIA JEAN MAHAJAN AND OTHERS[1] 12. On the other hand, the learned counsel appearing for the respondents would submit that the deceased was transporting his sheep for sale and as such he should be considered as the owner of the goods, but not a gratuitous passenger. He would further contended that the claimants are entitled for just and reasonable compensation in accordance with provisions of the M.V.Act and in that sense the amount awarded in excess of the claim cannot be said to be illegal. He would further submits that as per the direction, deficit Court fee was also paid and therefore the appeal is liable to be dismissed. 13. Learned counsel for the respondents placed reliance on the Judgment of the Apex Court in NAGAPPA V GURUDAYAL SINGH AND OTHERS [2] and he also relied the Judgment of this Court in D.KRISHNAVENI AND OTHERS V MOHD.SIKANDER AND ANOTHER[3] . The points for consideration are: 1) Whether the deceased was a gratuitous passenger or owner of goods?; and 2) Whether the amount awarded in excess of the claim is legal? 14. The claimant No.1 examined herself as PW-1 and examined one Koyyi Apparao as PW-2 (eye witness) and got marked Exs.A1 to A4 i.e. Ex.A1(certified copy of FIR in Crime No.39 of 2005 under Section 304-A and 338 I.P.C. of Rambilli P.S), Ex.A2 ( Certified copy of the post mortem certificate), Ex.A3 (Certified copy of M.V.I.Report) and Ex.A4(Driving Licence of the auto driver) were marked on behalf of the claimants. The second respondent examined its Branch Manager, Visakhapatnam as RW-1 and filed Exs.B1 to B3 i.e, Ex.B1( is the charge sheet) Ex.B2 ( is the copy of he policy) and Ex.B3 (registration certificate). 15. PW-1 (claimant No.1) in her evidence stated that her husband used to do business in selling sheep and on the date of the accident he was going along with five sheep from Haripuram Village to Tallapalem weekly shandy in the auto. She also stated that the deceased was earning Rs.5000/- per month and further stated that the deceased died on account of the accident. In the cross examination on behalf of the appellant insurance company, nothing was suggested whether the deceased was traveling in the auto along with the sheep. PW-2 was an eye witness to the accident. In his evidence he categorically stated that the deceased used to do business in purchasing and selling sheep in the shandy at Tallapalem and Atchutapuram. He further stated that the deceased used to earn Rs.5000/- per month. PW-2 also travelled in the same auto and he further categorically stated that the vehicle was driven in a rash and negligent manner and the accident took place only on account of rash and negligent driving of the auto driver. He denied the suggestion that the deceased not doing business in the sale and purchase of the sheep and earning Rs.5000/- per month. 16. From the evidence of PWs 1 and 2 it is evident that the deceased was carrying the sheep along with him in the offending vehicle for the purpose of sale in that particular village Tallapalem. 17. RW-2 examined on behalf of appellant insurance company. In his evidence he stated that the offending vehicle was a goods vehicle and that the deceased was an unauthorized passenger and the auto was authorized to carry only two persons as per the registration certificate. He further deposed that the driver of the vehicle was not added as a party to the O.P. Respondent No.1 admitted that the deceased along with other passengers and sheep travelled in a small auto which has capacity of two persons which come under the violations of the policy and therefore, the appellant insurance company is not liable to pay the compensation. Ex.B1 is the charge sheet, ExB- 2 is the insurance policy and Ex.B3 is the certificate of registration. As per Ex.B1 the vehicle was proceeding with 12 passengers and 6 shepherds to go to Tallapalem village. Therefore, based on the same, the counsel would submit that since the offending vehicle was authorized to carry only two persons, there were more persons, the conditions of the policy were violated. A perusal of Ex.B2 insurance policy would show that in addition to the basic premium, premium for the workman employee, was also paid. This additional premium of Rs.75/- was paid in respect of others. 18. It may be noted that RW-1 in his evidence did not specify as to how many persons travelled in the said auto. He merely stated that the deceased along with other passengers and six sheep traveled in the auto. Therefore, it is evident that RW-1 had no knowledge of the facts of the case. In his cross examination he admitted that he did not make any investigation in this case and that he did not examine the owner or driver to support the plea that the deceased was a gratuitous passenger. 19. Considering the evidence of PWs.1and 2 in juxta position to the evidence of RW-1 it has to be held that the deceased was travelling along with the sheep, and as such he is the owner of the goods travelling at the time of accident. In fact this is the finding of the Tribunal too, but not a gratuitous passenger. Point No.1 is answered accordingly. 20. POINT NO.2: The appellant/insurance company disputes the quantum of compensation. The Tribunal awarded Rs.3,92,000/-. The learned counsel for the appellant / insurance company would contend that the claimants specifically pleaded and claimed a compensation of Rs.2,00,000/-only. Therefore, the Tribunal has no jurisdiction to award more than what has been sought for. He would contend that the claimants are the best persons to assess their own claim and it is not for the Tribunal to substitute its own assessment. As mentioned above, he placed reliance on a Judgment of the Apex Court in UNITED INDIA INSURARNCE COMPANY LIMITED V PATRICIA JEAN MAHAJAN AND OTHERS (1 supra) drew attention to para 39 wherein the Apex Court observed that the claimants cannot ask for more than what they prayed in the claim petition. In the said para, the Apex Court was considering the claim with reference to exchange rate of U.S.Doller. The Claims Tribunal while awarding compensation therein allowed exchange rate at Rs.30/-. In appeal, learned single Judge allowed the then current rate of Rs.47/-. The Division Bench restricted to Rs.30/-. The Apex Court while holding that the decree was for a definite sum in terms of Rupees, there was no occasion to convert the mount of decree in Rupees into Dollars and again re- convert Dollars into Rupees at different exchange rates. In that contest the court observed that the claimants cannot ask for more than what was prayed in the claim petition. However, in a later Judgment in NAGAPPA V GURUDAYAL SINGH AND OTHERS (2 supra), the Apex Court considered the question whether amendment to the claim petition would be granted at the appellate stage. In the said case, a poor agriculturist met with an accident with a truck, as a result of which he suffered injures along with others. He filed the claim petition and the Tribunal passed the award granting a sum of Rs.15,000/- for injury, pain and suffering, Rs.5000/- for loss of enjoyment of life, Rs.5000/- for loss of earnings and Rs.5000/- for medical treatment, totaling Rs.30,000/- with interest @9% per annum from the date of application. The said award was challenged by the appellant therein in the High Court of Karnataka, and the High Court of Karnataka enhanced the compensation and awarded Rs.82,000/- towards loss of amenities of life, loss of future earnings, pain and sufferings. It was also ordered that the appellant should be entitled to a further sum of Rs.18,000/- for purchase of artificial leg. While dealing with the question, the Apex Court referred to the provisions of the M.V.Act elaborately, and held as follows: “It cannot be held that there is a bar for the Claims Tribunal to award the compensation in excess of what is claimed, particularly when the evidence is brought on record is sufficient to pass such award. In cases where there is no evidence on record, the Court may permit such amendment and allow to raise additional issue and given an opportunity to the parties to produce relevant evidence.” The learned Judge of this Court in D.KRISHNAVENI AND OTHERS V MOHD.SIKANDER AND ANOTHER (3 supra) relied on the said Judgment of the Apex Court and enhanced the compensation from Rs.3,00,000/- to Rs.4,06,000/-. 21. In view of the above, it cannot be said that the impugned award granting more compensation than claimed by the claimants cannot be said to be in correct. 22. Accordingly, there are no merits in this appeal and the same is accordingly dismissed. There shall be no order as to costs. __________________ NOUSHAD ALI, J JULY 08, 2010. YVL [1] 2002 (3) Accidents Claims Journal 1441 [2] AIR 2003 SC 674 [3] 2009 (6) ALT 620