IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD THURSDAY THE FIFTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT HONOURABLE SRI JUSTICE B.N.RAO NALLA C.M.A.NO. 3627 OF 2002 Between: The Oriental Insurance Company Ltd. Vijayawada Branch, Krishna district … Appellant V/s. Rachuri Yelia & Ors. … Respondents Counsel for the Appellant : Sri Jalli Kankaiah Counsel for the Respondents: Sri TVS Prabhakar Rao HONOURABLE SRI JUSTICE B.N.RAO NALLA CMA.NO. 3627 OF 2002. J U D G M E N T : This Civil Miscellaneous Appeal arises out of the award and decree dated 26-7-2002 passed in MVOP.No. 320 of 1996 by I- Additional District Judge, Krishna at Machilipatnam, whereby, an amount of Rs.75,000/- with interest @ 9% p.a. was awarded to the claimants. 2. The first claimant is the father of the deceased and the second claimant is the brother of the deceased. On 6-5-1996, at about 08:00 p.m., the deceased was traveling by a lorry bearing No.AP-16-W57. The vehicle belongs to the second respondent and the same was insured with the third respondent-Insurance Company and it was driven by its driver-Respondent No.1 in a rash and negligent manner at high speed and when he applied sudden brakes, he lost control and the lorry turned turtled and fell into a drainage canal with load of urea causing death of three passengers including the deceased in this case, who was aged about 2 years. The deceased was traveling by accident lorry by paying fare. The accident occurred in the outskirts of Chitturu, northern side of challapalli main road at 33/6 KM stone. 3. Respondent No.3 Insurance Company denied the material averments of the claim-petition including the age and other things, contending that the deceased was traveling as unauthorized passenger in goods vehicle contrary to the terms and conditions of Ex.B1 policy, as such, denied its liability to pay any compensation to the claimants, who are father and brother of the deceased. It is also denied that the driver of the mini lorry had valid driving licence at the time of accident. 4. Having regard to the averments in the petition as well as the counter-affidavit filed on behalf of the Insurance Company, the Claims Tribunal framed the following issues for trial: 1) Whether there is rash and negligent driving of the vehicle by its driver ? 2) Whether the petitioner is entitled to claim compensation, if so, to what amount from which of the respondents ? 3) Whether the claim of the petitioner is excessive or not ? 4) To what relief ? 5. The first petitioner got himself examined as PW-1, who has reiterated in his evidence the petition averments. One of the passengers in the accident mini lorry was examined as PW-2 as an eye witness to the scene of occurrence. Exs.A1 and A2 were marked. Ex.A1 is the Postmortem examination report and Ex.A2 is the inquest report. On behalf of the third respondent Insurance Company, its Assistant Administrative Officer was examined as RW-1 and Ex.B1 Insurance Policy was marked. 6. After taking into consideration the evidence of PWs 1 and 2 and RW-1 and Exs.A1 and A2 and Ex.B1, the Claims Tribunal gave a finding on the first issue that the accident had occurred due to the rash and negligent driving on the part of the first respondent driver after having lost control over the vehicle on application of sudden brakes. As a result, the lorry turned turtled causing the death of three passengers. 7. The Claims Tribunal presuming that the deceased, after attaining the age of 20 years, could have contributed to his family atleast Rs.400/- per month and thus assessed the loss of dependency at Rs.7,200/- per annum. That by taking the age of the first petitioner father of the deceased i.e., 31 years, had applied multiplier 14.5 and assessed the loss of total dependency at Rs.1,04,400/-. Since the petitioners claimed Rs.75,000/-, it was restricted to that extent only and accordingly allowed the claim petition in toto awarding Rs.75,000/- to the petitioners together with interest @ 9% per annum. 8. The learned counsel for the appellant Insurance company submits that the deceased was a gratuitous/unauthorized passenger in the accident vehicle at the time of his death. Therefore, the Insurance Company is not liable to pay any compensation to the claimants. Relying on the decision reported in 2004 ACJ page No.1 Swaran Singh in Sarla Verma’s case, the Insurance Company is not liable. The learned counsel also submits that even if any amount is ordered to be paid to the claimants, in such a case, the Insurance Company has to pay and recover the same from the owner of the vehicle. He also contends that the Claims Tribunal erred in allowing the claim petition in toto by awarding the total compensation of Rs.75,000/- in favour of the claimants. The learned counsel suggested that in view of the fact that the deceased was aged only 2 years, his earnings cannot be assessed and the Claims Tribunal awarded the amount only based on his guess work. 9. On the other hand, the learned counsel for the respondents- claimants submits that as on the date of the accident, as per law in vogue, the respondents claimants are entitled to compensation and the Insurance company is liable to pay the same in view of Ex.B1 Insurance policy being in force at the relevant time. The learned counsel justified the Claims Tribunal in observing that the deceased, after attaining the age of 20 years contributed the family Rs.400/- per month atleast towards his parents and thus by taking into consideration the age of the father, the Claims Tribunal has fixed appropriate multiplier 14.5 and arrived at Rs.1,04,400/-. Since the amount exceeded the total amount claimed, it was restricted to Rs.75,000/- only. He also justified the action of the Claims Tribunal in fixing the liability on the respondents jointly and severally to pay the compensation to the claimants. 10. It is evident from the record that on 29-7-2005, while passing the interim orders this Court directed the appellant-Insurance Company to deposit half of the compensation amount awarded by the Claims Tribunal including costs and interest. It is informed by the learned counsel for both the parties that the appellant Insurance Company complied with the interim order by depositing half of the decretal amount and the same is said to have been withdrawn by the respondents-claimants. 11. After hearing both the parties and having regard to the facts and circumstances of the case and also considering the suggestion coming from other side, it is considered appropriate to restrict the claim of the respondents-claimants to the extent of the amount deposited by the appellant-Insurance company which has already been withdrawn by the respondents-claimants. 12. With the above observation, this Civil Miscellaneous Appeal stands disposed of. No costs. _____________________ JUSTICE B.N.RAO NALLA 05/08/2010 I s L THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CMA.No. 3627 OF 2002 05-8-2010 I s L