IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SIXTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.576 of 2002 Between: Ganja Satyanarayana and others .. Appellants AND Balireddy China Ramu and 2 others .. Respondents JUDGMENT: This appeal is directed against the award dated 07-04-1997 in O.P.No.246 of 1992 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District Judge, East Godavari at Kakinada. On 5-3-1991, Ganja Venkatanarasamma and others were travelling by Van ABW 4751 and due to rash and negligent driving of the van by the driver, near Dr. Sharma Hospital, Jagannaickpur, Kakinada, the van turned turtle resulting in the death of Venkatanarasamma. The 1st claimant is the husband of Venkatanarasamma, while the minor claimants 2 to 4 are her children and Venkatanarasamma was claimed to be earning Rs.800/- to 900/- per month by doing tailoring work. The claimants, therefore, sought for a compensation of Rs.1,00,000/-. While the driver of the van remained ex parte before the Tribunal, the owner of the van admitted the 1st respondent being the driver of the vehicle, but denied any rash and negligent driving by him. The 2nd respondent claimed to have sold away the van in May 1991 to Somaraju of Ommangi village and he desired the claim to be negatived, while asserting the subsistence of a valid insurance policy with the 3rd respondent for the van. The 3rd respondent-insurer contended that there were 14 to 19 passengers in the van, who paid the fare and the violation of terms and conditions of the policy of insurance exonerated the insurer from any liability. The amendment of number of passengers during the course of proceedings was pleaded to be probablising the carriage of excess passengers. The Tribunal framed issues about the responsibility for the accident, the entitlement of the claimants to compensation and the relief to be granted. During the course of enquiry, the Tribunal examined PWs.1 and 2 and RWs.1 and 2 and marked Exs.A.1 to A.3 and B.1 to B.3. The Tribunal rendered the impugned award, firstly noting that there was no dispute with regard to the happening of the accident and the accident being due to the rash and negligent driving of the van by its driver was probablised by the oral and documentary evidence on record. The Tribunal observed that the insurer is not liable to pay any compensation as the insurance policy was issued only for carriage of passengers in accordance with the permit and the vehicle could not have carried 19 people whose names were specified in Ex.A.1-First Information Report. The insurer was, therefore, held liable to indemnify the owner only to the extent of “no fault liability”. In the absence of any data with regard to the income of the deceased, it was presumed that the deceased was earning Rs.200/- per month and applying a multiplier of 15 for the age of 32 years of the deceased, the Tribunal arrived at loss of dependency of Rs.36,000/- and also granted Rs.10,000/- towards loss of consortium and Rs.15,000/- towards loss of estate. The total compensation of Rs.61,000/- was directed to carry interest at 12% p.a. and proportionate costs. The compensation was directed to be apportioned between the claimants 1 to 4. The claimants were aggrieved by the award and challenged the same in this appeal contending that the compensation ought to have been granted as prayed for and ought to have been granted against the insurer also. Sri Krishna Kishore Kovvuri, learned counsel representing Sri N. Siva Reddy, learned counsel for the appellants and Sri Suresh Kumar Routhu, learned counsel representing Sri Bathula Venkateswara Rao, learned standing counsel for the 3rd respondent-insurer are heard. Respondents 1 and 2, the driver and owner of the offending vehicle, are unrepresented before this Court. The finding of the Tribunal about the responsibility of the van driver for the accident with his rash and negligent driving remained unchallenged by any party and it has become final. The ownership of the vehicle with the 2nd respondent and its subsisting insurance with the 3rd respondent are not in dispute and the tortious liability of the 1st respondent and the vicarious liability of respondents 2 and 3 to justly and adequately compensate the dependents of the deceased Venkatanarasamma cannot, therefore, be in dispute. The insurer was made liable only to the extent of “no fault liability” on the ground that by carrying 19 persons in the vehicle, there was violation of the terms and conditions of the insurance policy. Apart from the fact that there was an amendment to the pleadings by the claimants specifying the passengers carried to be only 11, which amendment was not challenged by any of the respondents in any manner, PW.1 stated that there were only 11 persons in the van at the time of accident. His eye-witness account was attempted to be contradicted by the Administrative Officer of the insurer as RW.1 by relying on the contents of the First Information Report referring to the presence of 19 passengers in the vehicle at the relevant time. He was not dependent on any other material than the First Information Report in this regard and he admittedly had no personal knowledge about the number of persons being carried in the vehicle. It is, of course, true that the earliest version in the First Information Report specified the names of 19 persons carried in the vehicle and Ex.A.3-M.V. Inspector’s report also referred to 19 passengers carried in the vehicle being injured in the accident, apart from the driver and the cleaner. Ex.B.1-copy of the insurance policy shows that the seating permitted including driver and cleaner was only 12. If only 11 passengers were being carried in the vehicle as claimed by PW.1 and by the amended pleadings, there was patently no violation of the terms and conditions of Ex.B.1- insurance policy and the insurer could not have been absolved from its liability to indemnify the owner of the vehicle in respect of the compensation payable to the dependents of the deceased. If it were otherwise, the learned counsel for the appellants relied on the judgment of this Court in C.M.A.No.1519 of 2000 arising out of the same accident and the learned Judge held on 17-10-2006 that there was no clear cut finding as to the violation of conditions of insurance policy and even if there is any violation as per the finding of the Tribunal below, the insurance company is equally, jointly and severally liable to pay the compensation as fixed by the Tribunal along with the owner of the vehicle, while it can recover the same from the owner later. Consequently, the learned Judge made the insurer also liable to pay the compensation fixed by the learned Judge along with the owner. The said judgment is stated to have become final and if so, the same has a great persuasive value in the present case also having arisen out of the same accident. Even otherwise, the principle laid down by the Apex Court in National Insurance Company Ltd., v. Anjana Shyam[1] should apply squarely to the facts of the present case. The Apex Court was dealing with a case of admitted overloading of the vehicle and the liability of the insurance company therein was found to be in respect of 42 passengers in respect of whom premium for insurance was paid. The Apex Court directed that the higher of 42 awards will be taken into account and the sum total of those higher 42 awards would have to be deposited by the insurance company, distributed between 90 claimants, who can recover the balance from the owner of the vehicle. If it were true that Ex.B.1-insurance policy was issued in respect of permitted strength of 11 passengers, the evidence of RW.1 on behalf of the insurer clinches the issue. RW.1 stated that in all about 10 persons alone sustained injuries and all the 10 injured persons filed petitions claiming compensation. If the insurance policy covered 11 passengers and if the claimants are confined to 10 persons, on the principle laid down by the Apex Court in National Insurance Company Ltd., v. Anjana Shyam (stated supra), the insurer cannot escape from its liability to indemnify the owner concerning the compensation payable to the dependents of the deceased. The exoneration of the insurer from the liability by the Tribunal in the impugned award has, therefore, to be reversed. Coming to the quantum of compensation, the Tribunal, in the absence of any documentary evidence, considered the deceased to be earning Rs.200/- per month, which is much much less than even the minimum income presumed by the Second Schedule to the Motor Vehicles Act in the case of even a non- earning person at Rs.15,000/-p.a. The claimants contended that the deceased was earning Rs.800/- to Rs.900/- per month and PW.1, the husband of the deceased, also stated on oath that his wife was earning Rs.800/- per month as a tailor. This claim was not subjected to any specific cross-examination by the respondents and RW.1 did not refer to this aspect at all. As the income claimed by the claimants is much less than the income presumed by the statute in respect of a non-earning person and as the services of the deceased as a house wife and mother also have to be monetarily valued, the claim that she was earning Rs.900/- per month should have been accepted by the Tribunal as it is. The age of the deceased was stated to be 32 years and as per Sarla Verma and others v. Delhi Transport Corporation and another[2], the appropriate multiplier applicable would have been 16. The claimants also would have been entitled to Rs.5,000/- each towards loss of estate and funeral expenses and Rs.10,000/- towards loss of consortium and if so, the claim of the claimants before the Tribunal and before this Court for a compensation of Rs.1,00,000/- is for a much lesser amount and has to be accepted as it is. The interest granted at 12% p.a. in respect of the compensation originally awarded need not be disturbed, while on the enhanced portion of the compensation, such interest can be confined to 6% p.a. in view of the length of time for which such interest has to be paid. Costs have to be paid on the enhanced portion of the compensation also. The appeal has to be allowed accordingly. In the result, the award dated 07-04-1997 in O.P.No.246 of 1992 on the file of the Chairman, Motor Accidents Claims Tribunal- cum-IV Additional District Judge, East Godavari at Kakinada, is modified by awarding a further compensation of Rs.39,000/- with interest thereon at 6% p.a. from the date of petition till realisation and costs, in addition to the compensation already awarded by the Tribunal under the impugned award and by further directing both the respondents to the claim petition to be jointly and severally liable to pay the entire compensation of Rs.1,00,000/- with respective rates of interest and costs and further directing the apportionment of the entire compensation in the same proportion in which it was directed to be apportioned by the impugned award. The appeal is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 16-03-2011 Ksn [1] AIR 2007 (SC) 2870 [2] 2009 ACJ 1298