THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR CMA No.869/2000 JUDGMENT: 1. Aggrieved by the judgment and order dt. 7-8-1995 passed in OP No.54/94 on the file of Motor Accidents Claims Tribunal-cum- Additional District Judge, Adilabad, the claimants preferred the present appeal seeking enhancement of the compensation and also for not fastening the liability on the insurance company to pay the compensation. 2. The facts which led to the filing of the appeal are as under: On 26-7-1993 at about 6 AM the deceased Komaraiah boarded the lorry bearing registration No.APU 7299 at Ambaripet of Karimnagar District with two bags of pulses and vegetables to go to Mancherial. The deceased is said to have paid a sum of Rs.25/- towards luggage charges to the driver of the lorry. When the lorry reached Donaband bridge, the driver of the lorry, who was driving the said vehicle in a rash and negligent manner and in high speed lost control over the same and hit the bridge, resulting in vehicle turning turtle. The deceased who was travelling in the said vehicle died on the spot. According to the claimants, the deceased was working as Coal Cutter in MK-IV incline in Ramakrishnapur area of Singareni Collieries and was earning Rs.3,500/- per month. Since the accident took place due to rash and negligent driving by the driver of the lorry, the owner and the insurer of the lorry are jointly and severally made liable to pay compensation. 3. The claim petition against R-1 who is the driver of the lorry was dismissed. 4. The second respondent who is the owner of the vehicle remained ex parte. 5. The third respondent, who is the insurer of the lorry, filed their counter denying the averments made in the claim petition. They are disputing the age, income and also earnings of the deceased. According to them, the driver of the vehicle was not having a valid driving licence at the time of accident and that they are not liable to pay compensation. It is further stated that the policy does not cover the risk of persons travelling in the goods vehicle as passengers and as such they are not liable to pay any compensation to the claimants. 6. Basing on the above pleadings, the tribunal framed the following issues: 1. Whether the accident occurred on 26-7-1993 due to rash and negligent driving by its driver with a vehicle bearing No.API 7299? 2. Whether the claim of the petitioners is excessive and exorbitant? 3. To what relief? 7. The claimants got examined P.Ws.1 and 2 and also got marked Exs.A-1 to A-6. The respondents examined R.W.1 and also got marked Exs.B-1. 8. The tribunal after considering the oral and documentary evidence, awarded a sum of Rs.2,26,000/- together with interest at 15% per annum from the date of petition till the date of realization, as compensation towards loss of love of life, future earnings and pain and suffering. It has been further held that out of the said amount, the respondent No.2 ie., owner of the was held liable to pay a sum of Rs.2,01,000/- within one month from the date of order and the respondent No.3 ie., insurance company was held liable to pay Rs.25000/- under no fault liability. 9. The learned counsel for the appellants-claimants contends that the compensation awarded is on lower side and seeks enhancement. He further contends that the insurance company is liable to pay compensation since the deceased was travelling in the said vehicle along with goods and as such he cannot be described as an unauthorised passenger. Though the notice was served on the second respondent/owner of the vehicle on 16-11-2007, there was no representation on his behalf. 10. On the other hand, the learned counsel for the insurance company contends that there is no evidence on record to show that the deceased was travelling in the said vehicle along with goods. No eye witness has been examined to prove the said version. In any event, he contends that the tribunal after considering the evidence has awarded compensation which warrants no interference from this court. 11. The finding of the tribunal that the accident took place due to rash and negligent driving by the driver of the lorry remained un- challenged as the same has not been challenged either by the insurance company or by the owner of the vehicle. 12. The only question which requires to be considered is whether the claimants are entitled to the compensation more than what has been awarded by the tribunal and whether the insurance company is liable to pay the said amount? 13. It is not in dispute that the deceased was working in Singareni Collieries as Coal Filler in MK-IV Ramakrsihnapur. Ex.A-6 is the pay slip, which is produced on record to prove the income of the deceased. The said certificate would disclose that the deceased was drawing a salary of Rs.2,523/- per month. The tribunal took the contribution of the deceased towards his family as Rs.1,500/- per month. The said finding is disputed by the learned counsel for the appellants contending that there is no basis for the tribunal to hold that the contribution of the deceased was only Rs.1500/- per month. The said objection appears to be tenable. He further contends that though the age of the deceased was found to be 40 years, the tribunal adopted multiplier “12” which according to the learned counsel is “15”. The tribunal erred in taking the contribution of the deceased to the family as Rs.1,500/- when the salary of the deceased is found to be Rs.2,523/- per month. As could be seen deducting 1/3rd towards his personal and living expenses, the contribution of the deceased to the family would be around Rs.1,800/- and not Rs.1,500/-. Applying the ratio laid down in SARLA VARMA V. DELHI TRANSPORT COMPANY[1] the suitable multiplier to be adopted when the age is held as 40 years is “15” and not “12”. Therefore, the loss of dependency to the family would be Rs.1800/- x 12 x 15= 3,24,000/-. The tribunal awarded only Rs.10,000/- under non-pecuniary damages, without awarding specific amounts under different counts. Therefore the said amount has to be adjusted equally towards loss of estate and funeral expenses. The wife of the deceased will be entitled to Rs.10,000/- as loss of consortium. Thus, the total compensation which the claimants would be entitled to is Rs.3,44,000/-. 14. With regard to the liability for payment of compensation, Ex.B- 1-insurance policy, which is produced on record by the insurance company would clearly show that the policy does not cover the risk of persons travelling as passengers in a goods vehicle, and no premium was paid covering their risk. The contention of the learned counsel for the appellants that the deceased should not be treated as an unauthorized passengers but should be treated as owner of the goods travelling the said vehicle with two bags of pulses and vegetables cannot be accepted. There is no evidence on record to show that the deceased was travelling along with certain goods. As stated supra, there are no eye witnesses to the incident to speak about the said fact. The claimants failed to produce the scene of offence panchanama, which could have indicated the presence of goods. 15. Section 2 (13) and 2(14) of the Motor Vehicles Act, 1988 defines goods and goods carriage, which are as hereunder: " goods" includes live- stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle; " goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods; Rule 252 of the A.P. Motor Vehicles Act, which is also relevant for deciding the issue on hand reads as : "Carrying of persons in goods vehicle carriage:- No person shall be carried in the cab of a goods vehicle beyond the number for which there is seating accommodation at the rate of 284 millimeters measured along the seat, excluding the space reserved for the driver for each person and not more than seven persons in all shall be carried in any goods vehicle. (2)No person shall be carried in a goods vehicle upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle and in no case shall any person be carried in a goods vehicle, in such a manner that any part of his person when he is in sitting position is at a height exceeding 3 meters from the surface which the vehicle rests. (3) No person other than a person connected to the conveyance of goods shall travel in a goods vehicle. (4) Notwithstanding the provisions of sub-rule (1) the Regional Transport Authority or the State Transport Authority, may subject to such conditions as it thinks fit allow a large number of persons to be carried in a goods vehicle; (5) Nothing in this rule shall be deemed to authorize the carriage of any person for hire or reward on any goods vehicle, unless there is in force in respect of the vehicle a permit authorizing the use of the vehicle for such purpose, and save in accordance with the provisions of such permit." 16. A reading of the above provisions of the Act coupled with the material facts would show that carrying couple of bags of pulses and vegetables by a passenger and boarding the vehicle midway, as admitted by him, would not become goods within the meaning of Section 2 (13) of the Act, as the luggage carried do not fall within the meaning of goods as defined in Section 2(13) of the Act. A reading of Section 2(13) of the Act would indicate that weight and volume of bags carried by the passenger would have relevance to find out whether they are luggage or goods. Further, Section 147 (1)(b)(1) of the Act reads as “including owner of the goods, or his authorized representative carried in the vehicle”. The intention of the law makers appears tobe to cover the risk of owner of the goods or his representative, who actually engage the goods vehicle for transport of goods from one destination to another, but does not include persons boarding the goods vehicle midway with a baggage of goods or luggage by paying some money to the driver of the vehicle. Few bags of pulses or vegetables carried by the deceased are not of such a volume which cannot be carried either in a bus, train or small van. The said baggage does not require a goods vehicle more so a lorry. Further, as per Rule 252(3) of the A.P.Motor Vehicle Rules, no person other than the person connected to “the conveyance of the goods” shall travel in the goods vehicle. The goods vehicle is intended to transport goods and cannot be used as stage carriage since the emphasis is on the word “conveyance of goods”. Therefore, a person who boards the goods vehicle in the midway with some baggage cannot be said to have engaged a goods vehicle for conveyance of his goods. The above view is fortified by a judgment of this Honourable Court in DEDDULA PADMAVATHI V.MADDULA SRINIVASA RAO[2]. 17. Further, the Honourable Supreme Court in NATIONAL INSURANCE CO. LTD., V. BALJIT KAUR[3] held as follows : “By reason of the 1994 Amendment what was added is "including the owner of the goods or his authorised representative carried in the vehicle". The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub- clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. 18. In NEW INDIA ASSURANCE CO., LTD., V. ASHA RANI[4], the apex Court held as follows: “… Keeping in view the provisions of 1988 Act, it can be said that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in the goods vehicle, the insurer would not be liable therefor. …. An owner of a passenger carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability as provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid.” It was further held as follows: “It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the Legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people.” 19. In NATIONAL INSURANCE CO.LTD. VS. BOMMITHI SUBBAYAMMA AND OTHERS[5], it was held as under: “Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people The inevitable conclusion from the above judgments is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability to pay any compensation to the claimants even if he is found to be travelling only as an unauthorized passenger. 20. Therefore, by no stretch of imagination, it can be said that the provisions of Motor Vehicles Act more so Sec.147 of the Act can be invoked to hold that the claimant was the owner of the goods and that he hired the vehicle for the purpose of transporting the goods. From the facts and circumstances of the case, the inevitable conclusion would be that the claimant was travelling in the said vehicle as gratuitous passenger and the insurer is not liable to pay any compensation. Even if he was found travelling in the said vehicle with two bags of pulses and vegetables, still he cannot be held to be the owner of the goods so as to entitle him for payment of compensation under the provisions of the Motor Vehicles Act. 21. In view of the findings given above, the compensation awarded to the claimant is enhanced from Rs.2,26,000/- (Rs.2,01,000/- + Rs.25,000/-) to Rs.3,44,000/- (Rs. 3,19,000/- + Rs.25,000/-). The enhanced compensation of Rs. 1,18,000/- to be paid by the owner of the vehicle will carry interest @ 6 % per annum from the date of the petition till the date of payment. 22. With the above observation, the Civil Miscellaneous Appeal is allowed in part by maintaining the finding with regard to liability of the second respondent-lorry owner to pay the compensation amount to the claimants. There shall be no order as to costs. _________________ C.PRAVEEN KUMAR, J Dt. 24-1-2013 kmr [1] (2009) 6 SCC 121 [2] 2005 ACJ 76 [3] 2004 (1) ALD 98 (sc) [4] 2003 (1) ALD 18 (sc)= 2003 ACJ 1 (sc) [5] 2005 (2) ACJ 721 (SC)