HONOURABLE SRI JUSTICE GHULAM MOHAMMED MA C.M.A.No. 679 OF 2004 JUDGMENT: Oriental Insurance Company is the appellant who filed the appeal challenging the award and decree passed in MVOP No. 442 of 2002 dated 18.11.2003 on the file of the Motor Accident Claims Tribunal-cum-II Additional District Judge, Kurnool, filed under Section 166 of the Motor Vehicles Act, claiming a compensation of Rs. 2,50,000/- as against which, the Tribunal awarded Rs. 1,85,000/-. 2. The brief facts of the case are as follows: On 05.07.2000 at about 5.00 PM the deceased Pinjari Babu Sab @ Pinjari Mabu was traveling in the lorry bearing No. AP 21T 4422 to go to Devarakonda Village along with five bags of ground-nuts by paying freight charges of Rs. 10/- per each bag, near Attekal Village, the driver drove the said lorry at high speed and lost control over the same, and because of that the lorry turned turtle and the deceased received grievous injuries and was shifted to Government General Hospital, Kurnool for treatment but he was succumbed to the injuries in the hospital on 2.8.2000. The deceased was aged about 28 years and was earning Rs. 100/- per day by doing coolly work. Hence, wife, children and father of the deceased laid a claim claiming compensation of Rs. 2,50,000/-. 3. The first respondent-owner of the lorry bearing No. AP 21T 4422 remained ex parte and the second respondent-Insurance Company filed its counter denying all the petition allegations stating that the accident occurred due to rash and negligent driving of the lorry and the claimants have to prove that the driver of the lorry is having valid driving licence, valid permit, age and income of the deceased on the date of accident and pleaded that the amount of compensation claimed is excessive and the petition is liable to be dismissed. 4. On the basis of the above pleadings, the following issues were settled for trial. 1. Whether the accident occurred due to rash and negligent driving of the lorry bearing No. AP 21T 4422 resulting in the death of Pinjari Babu Sab @ Mabu? 2. Whether the petitioners are entitled for compensation and if so, to what amount and from which of the respondents? 5. On behalf of claimants, PWs 1 2 were examined and Exs. A-1 to A-7 were marked. On behalf of respondents RW-1 was examined and Ex. B1 insurance policy was marked. 6. On consideration of both oral and documentary evidence, the Tribunal came to the conclusion that since the accident occurred due to rash and negligent driving of the driver of the accident lorry, the respondents 1 and 2 being owner and insurer respectively of the lorry, are jointly and severally liable to pay the compensation to the claimants. In order to determine the compensation, the Tribunal taken the income of the deceased at Rs. 15,000/- per annum, as provided in the second schedule under Section 163 A of the Motor Vehicles Act, as notional income for compensation to those who had no income prior to accident. After deducting 1/3rd of the amount towards personal expenses the contribution to the family comes to Rs. 10,000/- per annum. The age of the deceased was taken as 25 years and after applying relevant multiplier 17, the loss of dependency comes to Rs. 1,70,000/-. The Tribunal further granted an amount of Rs. 2,000/- towards funeral expenses, Rs. 5,000/- towards loss of estate and Rs. 3,000/- towards medical and other incidental expenses and Rs. 5,000/- towards loss of consortium thus in all granted Rs. 1,85,000/-together with interest at 9% per annum. Being aggrieved by the same the Insurance Company filed the present Civil Miscellaneous Appeal. 7. The learned counsel appearing for the appellant- Insurance Company submits that the Tribunal ought to have accepted the evidence of RW-1, who specifically stated that deceased traveled in the lorry as a paid passenger and not as a goods owner and as such, the insurance company is not liable to pay any compensation. He also submits that the Tribunal ought to have rejected the version of PW-1 that her husband was doing business in groundnut and ought to have dismissed the claim against appellant-Insurance Company since the deceased was traveling as an unauthorized passenger in a goods vehicle. 8. The point that arises for consideration is whether the Insurance Company can be exonerated from its liability? 9. As seen from the record, it is no doubt true that the accident occurred due to rash and negligent driving of the driver of the accident lorry and the first respondent- owner of the lorry and the appellant –Insurance Company being insurer, are jointly and severally liable to pay the compensation to the claimants. It is also no doubt true that the claimants failed to adduce any evidence regarding the income of the deceased, hence, the Tribunal taken the income of the deceased at Rs. 15,000/- per annum as provided in the Second Schedule under Section 163-A of the Motor Vehicles Act viz., notional income for compensation to those who had no income prior to accident and after deducting 1/3rd towards personal expenses, the contribution to the family was taken at Rs. 10,000/- per annum and for the age of 25 years the relevant multiplier 17 if applied the total comes to Rs. 1,70,000/- and in addition to that an amount of Rs. 2,000/- was granted towards funeral expenses, Rs. 5,000/- towards loss of estate and Rs. 3,000/- towards medical and other incidental expenses and Rs. 5,000/- towards loss of consortium totaling Rs. 1,85,000/- Hence, I see no reasons to interfere with the order passed by the Tribunal. But as far as exonerating the liability of the appellant- Insurance Company is concerned, the Supreme Court in NEW INDIA ASSURANCE COMPNAY LIMITED S. AZIZ BAIG AND OTHERS[1], held that the Insurance Company cannot be exonerated from its liability. 10. Following the above judgment, the appeal filed by the Insurance Company is dismissed. The learned counsel appearing for the appellant submits that the rate of interest granted by the Tribunal at 9% per annum, is on high side and requested to reduce the same. 11. Taking into consideration catena of Supreme Court Judgments and also the prevailing current rate of interest, the rate of interest granted by the Tribunal is reduced from 9% per annum to 7% per annum. 12. Accordingly, the appeal filed by the Insurance Company is dismissed. However, rate of interest granted by the Tribunal is reduced from 9% to 7% per annum. There shall be no order as to costs. _____________________ GHULAM MOHAMMED, J Date: 29.07.2010 KA [1] 1992 ACJ 480