HON'BLE SRI JUSTICE B.N.RAO NALLA C.M.A. No.412 of 2003 and M.A.C.M.A.No.725 of 2005 COMMON JUDGMENT: CMA.No.412 of 2003 is filed by the Insurance Company aggrieved by the order in O.P. No.150 of 1998, dated 23.08.2002, on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Chittoor, whereby an amount of Rs.1,29,500/- was awarded as compensation. M.A.C.M.A.No.725 of 2005 is filed by the claimants aggrieved by the order in O.P. No.473 of 1998, dated 01.12.2003, on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Chittoor, whereby an amount of Rs.1,82,000/- was awarded as compensation. The brief facts of the case are that on 01.05.1997, while the deceased in both the O.Ps., along with others, were travelling in Goods Tempo bearing No.K.A.02-A-966 and when it reached near National Highway-4, Nelamangala, Kunegal by-pass road, the driver of the Tempo drove it in a rash and negligent manner and in high speed, due to which, it dashed against a stationed lorry bearing No.GA-01/U-3159. While some others sustained injuries, the driver of the Tempo and A.Yagamoorthy Naidu (deceased in O.P.No.473 of 1998) died on the spot, K.Chengama Naidu (deceased in O.P.No.150 of 1998) succumbed to injuries. The dependants of the deceased in both the O.Ps. filed claim petitions before the Tribunal claiming compensation of Rs.3,00,000/- in O.P.No.473 of 1998 and Rs.5,00,000/- in O.P.No.150 of 1998. The owner of the vehicle remained ex parte. The Insurance Company contested the claim of the claimants by filing written statement stating that the deceased were travelling in the vehicle as gratuitous passengers, which was in violation of the policy conditions. Based on the pleadings of both the parties, the Tribunal framed the relevant issues. While the claimants in O.P.No.150 of 1998 got examined PWs.1 and 2 and got marked Exs. A.1 to A.4, the claimants in O.P.No.473 of 1998 got examined PWs.1 to 3 and got marked Exs.A.1 to A.10. While no witnesses were examined on behalf of the Insurance Company, it got marked Ex.B.1, policy in O.P.No.473 of 1998. In O.P.No.150 of 1998, the Tribunal, having observed that since the deceased-Chengama Naidu was travelling in the vehicle under the instructions of the owner of the vehicle, it was of the view that the deceased was not a gratuitous passenger and that though there was no satisfactory evidence regarding the income of the deceased, the Tribunal took the annual salary of the deceased at Rs.12,000/- and after deducting 1/3rd of it towards personal expenses, applied the multiplier of ‘16’, and awarded Rs.1,28,000/- (Rs.8,000/- X 16) towards compensation, in addition to Rs.5,000/- towards loss of consortium, Rs.2,500/- towards loss of estate and Rs. 2,000/- towards funeral expenses, making both the owner and the Insurance Company jointly and severally liable to pay compensation. In O.P.No.473 of 1998, the Tribunal observing that in view of the judgments of the Supreme Court, either the gratuitous passenger or owners or representatives of the goods travelling in a goods vehicle are not entitled to claim compensation from the Insurance Company, presumed the deceased-Yagamoorthy Naidu to be the gratuitous passenger travelling in the course of his business as a commission agent, that the Tribunal declined to rely on the documentary evidence i.e. Exs.A.1 to A.10 since they did not support either with regard to his running of poultry business or doing agriculture or working as a commission agent, that the Tribunal took the income of a cooly, which would be on a average of 15 days in a month, at Rs.750/- p.m., and after deducting 1/3rd of it towards personal expenses, applied the multiplier of ‘30’ and assessed his annual contribution at Rs.1,80,000/- (Rs.500 X 12 = Rs.6,000/- X 30) in addition to Rs.2,000/- towards funeral expenses and Rs.15,000/- towards loss of consortium making the owner of the vehicle liable. Learned Counsel for the Insurance Company would contend that the deceased was a gratuitous passenger and since the insurance policy was marked in O.P.No. 473 of 2003 and not in O.P.No.150 of 1998, the Tribunal ought to have seen that the terms of the policy are binding on the owner of the vehicle and exonerated the Insurance Company from its liability in O.P.No.150 of 1998. He would further contend that in view of the decision of the Apex Court in National Insurance Company Limited v. Prema Devi[1], the claimants are entitled to proceed only against the owners of the offending vehicles for recovery of the awarded amount and the Tribunal was in error in fastening liability on the Insurance Company. In view of the decision of the Apex Court in National Insurance Company Limited (1 supra), the statutory liability lies on the owner of the vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor and it is open to the claimants to recover the amount awarded from the owners of the offending vehicles. In view of the afore-stated decision, CMA.No. 412 of 2003 is allowed and the award of the Tribunal in so far as the Insurance Company is concerned is set aside. It is, however, clarified that the 4th respondent alone is liable for payment of the compensation amount and the claimants are at liberty to proceed against the 4th respondent for payment of the compensation amount. Further, if any compensation has been paid by the Insurance Company pursuant to the impugned award, the Insurance Company is at liberty to proceed against the owner of the vehicle for recovery of the same. In so far as MACMA.No. 725 of 2005 filed by the dependants of the deceased-Yagamoorthy Naidu seeking enhancement of the compensation is concerned, the claimants have not produced the salary particulars of the deceased, but only a bunch of cash/credit bills of various dates from 25.01.1995 to 19.03.1997 were produced for the purpose of claiming compensation, and the Tribunal was justified in taking his income at Rs.50/- per day, what a cooly would earn. However, while totalling the amount, the amounts of Rs.15,000/- awarded towards loss of consortium and Rs.2,000/- towards funeral expenses were not included by the Tribunal. Hence, the claimants are entitled to that extent only. The claimants are entitled to compensation of Rs.1,97,000/- instead of Rs.1,82,000/-. Subject to the aforesaid clarification, MACMA.No. 725 of 2005 is dismissed. No order as to costs. B.N.RAO NALLA,J Date: 09.09.2010 Usd [1] 2008(5) SCC 403