IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTIETH DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA M.A.C.M.A.No.2067 of 2008 Between: The Divisional Manager, the New India Assurance Company Limited, HDCT Complex, Road, Kurnool ..... APPELLANT AND Smt.Mala Papamma and others ..... RESPONDENTS JUDGMENT: M.A.C.M.A.M.P.No.1349 of 2010 is filed by the respondents – claimants – vacate petitioners praying for vacation of the interim order dated 24-07-2008 in MACMA.MP.No.4351 of 2008 in M.A.C.M.A.No.2067 of 2008 and pass such other suitable orders. 2. When the vacate application came up for hearing the counsel on record Sri K. Kishor Kumar Reddy, the learned counsel representing the appellant – the Divisional Manager, the New India Assurance Company Limited and Sri K. Venkatesh Guptha, the learned counsel representing the vacate petitioners – respondent Nos.1 to 6 – Claimants made a request for final disposal of the MACMA itself and hence, at this stage the MACMA was heard finally and the same is being disposed of finally with the consent of the counsel on record. 3. Sri K. Kishor Kumar Reddy, the learned counsel representing the appellant would maintain that the Tribunal totally erred in fixing the liability as against the appellant – Insurance Company. The learned counsel also would maintain that at the time of accident the bus was given on hire to KSRTC and hence, in the light of Section 230 of the Motor Vehicles Act the Insurance Company cannot be fastened with liability. 4. Per contra Sri K. Venkatesh Guptha would maintain that the Motor Accidents Claims Tribunal –cum- I Additional District Judge, Mahabubnagar (hereinafter in short referred to as ‘the Tribunal’ for the purpose of convenience) partly allowed the O.P. for a compensation of Rs.2,29,000/- (Rupees two lakhs and twenty nine thousands only) with proportionate costs and interest @ 7.5 % p.a. from the date of petition till the date of realization and respondents 1 and 2 i.e., M/s.Lahari Travels, rep. by Sri K. Ganesh Reddy and the Divisional Controller, KSRTC, Yadgir Depot are directed to deposit the said compensation in the Court within one month from the date of order. On such deposit, the petitioners 1, 5 and 6 are permitted to withdraw Rs.15,000/- each immediately and their balance of compensation shall be kept in fixed deposit in any Nationalized Bank for a period of two years. The entire compensation of petitioners 2 to 4 shall be kept in fixed deposit in any Nationalized Bank until they attain majority. 5. It is pertinent to note that there is no direction against the third respondent in O.P.No.433 of 2006 aforesaid i.e., the Divisional Manager, the New India Assurance Company Limited and in fact the O.P. was dismissed and however, the relief was negatives as against respondent No.3 stating that the third respondent is however, entitled to be exonerated. The third respondent being aggrieved by the wrong drafting of the drcree appears to have preferred this appeal. It is needless to say that the appellant/third respondent is at liberty to move appropriate application to get the decree drafted in accordance with the Judgment and it is needless to say that the same to be duly rectified since the decree to be in accordance with the judgment and decree cannot be contrary to the judgment. 6. As far as the other findings are concerned, the learned Tribunal recorded reasons in detail and ultimately allowed the O.P. in part as specified supra. 7. In fact the claimants claimed compensation of Rs.3,50,000/- for the death of Mala Mareppa, who died in a motor vehicle accident involving the KSRTC bus No.KA-33-2536 owned by the first respondent and insured by the third respondent and hired by the second respondent. It is stated that the first petitioner is wife, petitioners 2 to 4 are minor children, and petitioners 5 and 6 are parents of the deceased, who is native of Murahrudoddi village of Maganoor mandal. He was a carpenter. 8. It is alleged in the petition that on 19-02-2006, the deceased was proceeding on Motor Cycle (TVS Victor) bearing No.AP-22-F- 6230 as pillion-rider being driven by one Narsappa to go to their village. While so, at 2 p.m., they were passing near Chandapur village, the offending bus came in a rash and negligent manner and dashed their motorcycle and as a result, the deceased fell down and sustained fatal injuries and died on the spot. Narsappa sustained injuries but escaped death. 9. On the complaint of brother-in-law of deceased M. Anjaneya, the Police Makthal registered a case under Section 304-A and 337 IPC and investigated. The deceased used to work as carpenter and earn Rs.100/- per day and contributing the same to the maintenance of the family. Due to his sudden death, entire family has sustained huge loss of income besides love and affection. 10. Respondent No.1 was set exparte in O.P. Respondent Nos.2 and 3 have filed separate counters. Respondent No.2 denied allegations in the petition that the offending bus was driven in a rash and negligent manner at the scene of offence, that the deceased was hale and healthy and his avocation and income, that the petitioners are the sole legal heirs of the deceased and they sustained loss of income and are entitled for compensation as claimed in the petition. It is pleaded by R-2 that the accident occurred due to negligence of rider of the motor-cycle on which deceased was traveling but not driver of offending bus. However, the compensation claimed by the petitioners is excessive and exorbitant. In any event at the time of accident bus was hired to 3rd respondent and therefore, any compensation is awarded by the court for the death of deceased, shall be indemnify by the third respondent. 11. Third respondent denied allegations in the petition that the offending bus was driven in rash and negligent manner at the scene of offence, that the age of deceased, his avocation and income, that the petitioners are the sole legal heirs of the deceased and they sustained loss of income and are entitled for compensation as claimed in the petition. It is pleaded by R-3 that the offending vehicle has been duly insured by 2nd respondent and therefore, the question of R2 indemnifying loss caused to the death of deceased does not arise. The accident occurred due to negligence of rider of motorcycle but not driver of offending bus. The petitioners have not pleaded that driver of motorcycle possessed valid and effective driving license. Therefore, the compensation, if any, awarded for the death of deceased shall be assessed by applying the principles of contributory negligence. 12. The Tribunal below after settling the issues, on appreciation of evidence of PWs.1 and 2, RWs.1 and 2, Exs.A-1 to A-7 and Exs.B-1 and B-2 partly decreed the OP as already aforesaid. In the light of the same, the following points arises for consideration in this MACMA: 1. Whether the findings recorded by the Tribunal below are to be confirmed or to be disturbed in any way in the facts and circumstances of the case ? 2. If so, to what relief the parties would be entitled to ? 13. POINT No.1:- The respective pleadings of the parties and the evidence available on record had been referred to supra. As aforesaid the third respondent in fact had been exonerated but because of the wrong drafting of the decree this appeal had been preferred. Hence, it cannot be said that inasmuch as the first and second respondents against whom the directions had been issued had not chosen to prefer any appeal whatsoever since those findings are attained finality and inasmuch as the third respondent – the present appellant cannot make out any grievance whatsoever as against such findings. As no relief need be given in favour of the appellant except clarifying that the appellant – third respondent is at liberty to move appropriate application for modification of the decree since it is stated that the decree is not in accordance with the judgment of the Tribunal. It is needless to say that since the other findings, which had attained finality had not been challenged at all by the aggrieved parties – respondent Nos.1 and 2 in the OP aforesaid, the said findings also are hereby confirmed. 14. POINT No.2:- In the result, both the parties are at liberty to move appropriate applications praying for further clarification in the decree since the decree to be in accordance with judgment. 15. Accordingly, the MACMA is disposed of. There shall be no order as to costs. ___________________ P.S. NARAYANA, J April 20, 2010. Pn THE HON'BLE SRI JUSTICE P.S. NARAYANA M.A.C.M.A.No.2067 of 2008 April 20, 2010