IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE ELEVENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1701 of 2004 Between: M/s. United India Insurance Company Limited .. Appellant AND Smt. P. Ushamma & 9 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1701 of 2004 JUDGMENT: The appeal is directed against the award in O.P.No.44 of 1993, on the file of the Motor Accidents Claims Tribunal-cum- District Judge, Mahabubnagar, dated 11.03.1997. 2. Gunti Balaiah, husband of the first claimant, father of claimants 2 to 7 and son of claimants 8 and 9 before the Tribunal, was working as a labourer at the age of 40 years earning Rs.40/- per day contributed entirely to the claimants for their maintenance. Balaiah was working as a labourer for loading and unloading on 07.12.1992 on tractor-trailer No.AP 22/T 180 and AP 22/T 181 and when the vehicle was proceeding to Nagarkurnool at about 8.30 p.m., the trailer over turned due to the rash and negligent driving of the tractor at high speed and Balaiah died on the spot due to the severe injuries suffered. Nagarkurnool Police registered Crime No.171/92 against the tractor driver and, hence, the claimants sought for a compensation of Rs.1,00,000/- from the owner and insurer of the tractor-trailer. 3. While the owner remained ex parte before the Tribunal, the insurer contested the claim contending that the claimants have to prove the rashness and negligence in driving, the age and income of the deceased, the dependency on the deceased and the reasonableness of the claim. 4. The Tribunal framed issues on the entitlement of the claimants to compensation and the liability of the respondents for the same. 5. The Tribunal examined P.Ws.1 and 2 and marked Exs.A-1 to A-5 during the course of enquiry. 6. The Tribunal rendered the impugned award firstly accepting the evidence of the eye witness, P.W.2, corroborated by Ex.A-1-Charge Sheet filed by the Police to conclude that the accident occurred due to the rash and negligent driving of the tractor. The Tribunal noted that there was no mechanical defect in the vehicle and that the incident speaks for itself. The Tribunal, in assessing the compensation, took the age of the deceased as 40 years as stated in Ex.A-2-Post Mortem Report and took his income at Rs.15/- per day as against the claim of Rs.40/- per day in the absence of any definite evidence. The Tribunal deducted 1/3rd towards the personal expenses of the deceased and on the monthly loss of dependency at Rs.300/-, the Tribunal applied a multiplier of 12 as per BHAGAWAN DAS VS. MOHD. ARIF[1]. In addition, the Tribunal awarded Rs.7,500/- towards loss of expectation of life, Rs.7,500/- towards pain and suffering and loss of amenities and Rs.5,000/- towards loss of consortium. The total compensation of Rs.63,200/- was directed to carry interest at 12% per annum. 7. The insurer challenged the said award in this appeal contending that the tractor was used for commercial purposes when it was carrying a load of bricks and labourers, while the insurance was for agricultural purpose only. The terms and conditions of the policy were violated in the use of the tractor and in not checking the tractor periodically for its fitness. The insurer, therefore, desired that any compensation be awarded only against the owner and the award be reversed. 8. Sri P. Gopal Das, learned counsel for the appellant/insurer and Sri A. Vishnu Vardhan Reddy, learned counsel for the claimants are heard. The owner of the tractor is unrepresented during hearing. 9. The insurer or the other parties did not challenge the conclusion of the Tribunal about the rash and negligent driving of the tractor being the cause for the accident and the first respondent to the claim being the owner and the second respondent to the claim being the insurer of the tractor-trailer. The entitlement of the claimants to the quantum of just and adequate compensation arrived at by the Tribunal for the death of Balaiah as his dependents also is not in question. It is only the claim of the insurer about being absolved from any liability due to violation of the terms and conditions of the insurance policy that is the subject of adjudication herein. 10. The insurer did not specifically raise the question of violation of the terms and conditions of the insurance policy due to the use of the vehicle for a commercial purpose at the relevant time or due to non-maintenance of the tractor in a proper condition. There was neither a pleading nor an issue before the Tribunal in this regard and the insurer had not even chosen to produce any oral or documentary evidence before the Tribunal. Even the insurance policy was not admitted into evidence at the instance of the respondents, but the insurance policy certificate was only marked by the claimants as Ex.A-3. Any violation of the terms and conditions of Ex.A-3 was not confronted to P.Ws.1 and 2 and under the circumstances, irrespective of the truth or otherwise of the contentions of the insurer in this regard, the claimants cannot be put to any disadvantage at this distance of time when a valid and subsisting insurance of the vehicle obligating the insurer to indemnify the owner of the liability to third parties is not in dispute. A portion of the compensation was already deposited to the credit of the matter by the insurer which was permitted to be withdrawn by the claimants and, therefore, this is an eminently fit case where the principle of pay and recover should apply. If the insurer so desires, it can approach the Tribunal with an appropriate request for recovery of any amounts paid by it under the impugned award from the owner of the vehicle on the ground of violation of the terms and conditions of the insurance policy and consequent liberation from the liability to indemnify the owner, which request shall be decided by the Tribunal, after giving a reasonable opportunity of hearing to both parties including the owner, in accordance with law without the necessity of referring the insurer to any separate legal proceedings. 11. Subject to such liberty to the insurer, the Civil Miscellaneous Appeal should fail and is, accordingly, ordered without costs. ______________________ G. BHAVANI PRASAD, J Date: 11th October, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1701 of 2004 Date: 11th October, 2011 KL [1] 1987 ACJ 1052