IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.639 of 2003 Between: Mohammad Shaheen @ Shahinadh and others ..... APPELLANTS AND V. Mahesh and another ..... RESPONDENTS JUDGMENT: This is an application filed by the Claimants against the award in O.P.No.733 of 1999 dated 23-04-2002 on the file of the Chairman, Motor Accidents Claims Tribunal (Prl. District Judge), Nalgonda whereunder the claim petition filed seeking compensation has been dismissed without awarding any compensation. 2. The first claimant is the wife, claimant No.2 is the son and claimant Nos.3 and 4 are the parents of one Muneer (deceased). These claimants filed O.P. and sought for compensation for a sum of Rs.80,000/- stating that on 01-08-1999 when the deceased was going on a scooter bearing registration No.AP-24-A-1975 hit a lorry bearing registration No.AP-28-T-5758 which was parked in the middle of the road. The deceased was aged 28 years and earning Rs.3,000/- per month. It was alleged that there was no indication about the parking of the lorry in the middle of the road, suggestive of negligence on the part of the lorry driver, due to which the deceased hit the lorry from behind and received head injuries. The first respondent remained exparte. The second respondent – Insurance Company filed counter and contested the claim on the ground that accident was not reported to it and that the burden would lie on the claimants to establish the rash and negligent driving on the part of the driver of the lorry. 3. Based on the pleadings the Tribunal formulated the issues as to whether the accident occurred due to the rash and negligent driving of the lorry and whether the claimants were entitled for compensation and if so, to what amount. 4. The first claimant examined herself as PW-1 and marked Exs.A-1 to A-8. On behalf of the second respondent – Insurance Company Ex.B-1 insurance policy was marked but no witness was examined. 5. On consideration of the entire material the Tribunal held that there was no material to show that the accident occurred due to the rash and negligence of the driver of the lorry. As the claimants failed to establish the same the claim petition was dismissed. 6. Heard learned counsel for the appellants and Smt.I.Maamu Vani, learned counsel appearing on behalf of the second respondent - Insurance Company. 7. The learned counsel for the appellants would contend that the finding of the Tribunal that there was no rash and negligence is erroneous. He would contend that consideration of evidence of PW-1 and Ex.A-1 would establish the fact of rash and negligence. Alternatively he would contend that even if rash and negligence was not established, the claimants are entitled for compensation under the provisions of Section 140 of the Motor Vehicles Act, 1988 (for brevity ‘the Act’). 8. On the other hand, learned counsel appearing for the second respondent would contend that the order of the Tribunal dismissing the O.P. is justified and the same is not liable to be interfered with. 9. I have perused the evidence of PW-1. PW-1 is not the eye- witness. In her evidence she admitted that the accident was occurred three years back and she did not see the incident. She merely stated that the deceased was aged 24 years and he was doing milk business. Except this, no other fact was spoken to by her. Ex.A-1 would show that on 01-08-1999 when the deceased was proceeding, a lorry bearing registration No.AP-28-T-5758 was on the road due to tyre puncture. The deceased hit the lorry from behind. 10. In absence of evidence adduced by the claimants and in the light of the statement in Ex.A-1, the Claims Tribunal rightly held that rash and negligence has not been established. Therefore, the claimants are not entitled for compensation under the provisions of Section 166 of the Act. 11. However, there is no dispute that there was accident and that the deceased died in the said accident. Therefore, in the opinion of this Court provisions of Section 140 of the Act can be invoked and compensation can be awarded therein. Section 140 of the Act provides that where death or permanent disablement of any person has resulted from an accident a fixed compensation shall be payable and that the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. 12. Under sub-section (2) of Section 140 of the Act, in case of death the claimants are entitled for Rs.50,000/- only. Therefore, it is to be held that the claimants are entitled for Rs.50,000/- as compensation. 13. In view of the above, the order dated 23-04-2002 passed in O.P.No.733 of 1999 on the file of the Chairman, Motor Accidents Claims Tribunal (Prl. District Judge) at Nalgonda is set aside awarding compensation of Rs.50,000/- (Rupees fifty thousand only) to the claimants. The said amount shall carry an interest @ 6% p.a., from the date of petition till the date of realization. 14. It is not in dispute that the vehicle was covered by Ex.B-1 insurance policy as on the date of accident. Therefore, both the respondents are jointly and severally liable to pay the compensation. 15. Accordingly, the appeal is allowed in part. There shall be no order as to costs. _________________ NOUSHAD ALI, J July 23, 2010. Pn THE HON'BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.639 of 2003 July 23, 2010