IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TENTH (10TH) DAY OF NOVEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA Nos.260 & 341 of 2008 MA CMA No.260 of 2008: Between: Branch Manager, United India Insurance Co. Ltd., Madanapally … Appellant And: Anasuya Bai Sontake & others … Respondents MA CMA No.341 of 2008: Between: Branch Manager, United India Insurance Co. Ltd., Madanapally … Appellant And: Santhosh Shanker Sontake & another … Respondents HON’BBLE SRI JUSTICE G.V.SEETHAPATHY MA CMA Nos.260 and 341 of 2008 COMMON JUDGMENT: MA CMA No.260 of 2008 is directed against the order dated 21.08.2007 in MV OP No.1670 of 2002 on the file of the MACT cum II Additional District Judge (FTC), Nizamabad, wherein the said claim application filed by the respondents 1 to 4 herein was allowed in part awarding a sum of Rs.1,00,000/- with interest at 7.5% per annum. ii) MA CMA No.341 of 2008 is directed against the order dated 21.08.2007 in MVOP No.1671 of 2002 on the file of the MACT cum II Additional District Judge (FTC), Nizamabad, wherein the said claim application filed by the first respondent herein was allowed in part awarding a sum of Rs.20,000/- with interest at 7.5% per annum. 2. Heard both sides. Perused the record. As both the claims arise out of the same accident, they are heard together and are being disposed of by this common judgment. 3. The respondents 1 to 4 in MA CMA No.260 of 2008 filed claim application under Section 166 of the MV Act, claiming compensation of Rs.2,50,000/- for the death of the deceased Shankar Ghasiram Sontake, who died in a motor vehicle accident that occurred on 23.10.2002. The first claimant is the wife, and claimants 2 to 4 are children of the deceased. According to the claimants, the deceased was aged 55 years and was working as a labour and earning Rs.6,000/- per month. The first respondent in MA CMA No.341 of 2008, who is 4th claimant-son of the deceased Shankar Ghasiram Sontake, filed claim application under Section 166 of the M V Act, claiming compensation of Rs.1,00,000/- for the injuries sustained by him in the same accident. According to the claimants, on that day, the deceased and the claimant in OP No.1671 of 2002 were travelling in a lorry bearing No.AP 03 U 1130 to Nanded and when the lorry reached near Mallupet cross road on NH-7, on account of rash and negligent driving by its driver, the vehicle over turned, resulting injuries to the deceased Shanker Ghasiram Sontake, who died on the spot and the claimant in OP No.1671 of 2002 sustained fracture injuries and he was taken to Government Hospital, Kamareddy and from there, he was shifted to Guru Govind Singh Hospital, Nanded. 4. The 5th respondent in MA CMA No.260 of 2008 and 2nd respondent in MA CMA No.341 of 2008-owner of the offending vehicle, remained ex-parte. The appellant-insurer filed counters, opposing the claims and denying their liability to pay the compensation. 5. During enquiry, in MVOP No.1670 of 2002, PWs.1 and 2 were examined land Exs.A.1 to A.5 were marked on behalf of the claimants and RW.1 was examined and Ex.B.1 copy of the policy was marked. In MVOP No.1671 of 2002, claimant examined himself as PW.1 and Exs.A.1 to A.4 were marked and RW.1 was examined and Exs.B.1 copy of the policy was marked. 6. On a consideration of the evidence available on record, the Tribunal held in both the claim petitions that the accident occurred on account of the rash and negligent driving of the lorry by its driver. The said finding is not seriously challenged in these appeals. The Tribunal awarded a sum of Rs.1,00,000/- in OP No.1670 of 2002 for the death of the deceased and Rs.20,000/- in OP No.1671 of 2002 for the injuries sustained by the claimant, with interest at 7.5% per annum. Aggrieved by the same, the insurer filed the present appeals. 7. The main contention of the learned counsel for the appellant- insurer in both matters is that the deceased and the claimant, were unauthorized and gratuitous passengers in the goods vehicle, namely, lorry and therefore, the appellant-insurer is not liable to pay the compensation. It is no doubt true that as per the record, the deceased and his son were travelling in the lorry at the time of the accident, having boarded the same near Kamareddy bus stand to go to their village, Yacharam Thanda. The claimants have not filed any appeals seeking enhancement of the compensation. It cannot also be disputed that the lorry is a goods vehicle, but however, Ex.B.1 copy of the policy shows that additional premium was collected in a sum of Rs.75/- to cover the risk in respect of the non-fare paying passenger. Therefore, the insurance company cannot escape from payment of compensation in both the claims and the appellant-insurer is liable to pay the compensation in respect of one person, as the policy shows that additional premium was collected to cover the risk of one non-fare paying passenger. In the present case, there are two claims, one in respect of the deceased father and the other by the minor son, who sustained injuries. 8. In ‘National Insurance Co. Ltd. V. Anjana Shyam[1] the apex’ the apex Court while dealing with the question of quantifying the compensation payable to several claimants, whose number exceeded the number of persons covered by the policy, held that the higher of the various awards will be taken into account, which would be required by the insurance company to be deposited and distribution among the various claimants will have to be made from out of the said amount proportionately and leave all the claimants to recover the balance amount from the owner of the vehicle. 9. In the present case, the claimant in OP No.1671 of 2002 (respondents 1 to 4 in MA CMA No.341 of 2008) is none else than the son of the deceased in respect of whom other claim application in OP No.1670 of 2002 was filed by the LRs, including the claimant in OP No.1671 of 2002. In view of the principle laid down in the above decision, it is held that the appellant-insurer is liable to pay a sum of Rs.85,000/- in respect of the claimants in OP No.1670 of 2002 and Rs.15,000/- in respect of the claimant in OP No.1671 of 2002. The claimants are entitled to recover the balance amount from the owner of the offending vehicle in both the cases. The claimants are however entitled for interest at 6% per annum from the date of petition in view of the decision of the apex Court in Sarla Verma’s case [(2009)9 SCC 121]. 10. In the result, both the appeals are disposed of as stated above. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 11.11.2011 bss [1] 2007 (5) ALD 89 (SC)