THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED MA C.M.A.No. 744 of 2003 JUDGMENT: This Civil Miscellaneous Appeal has been filed by the claimants challenging the award and decree passed in OP No. 503 of 1997 dated 03.08.2002 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, West Godavari District, Eluru, filed under Section 166 of the Motor Vehicles Act, claiming a compensation of Rs. 1,00,000/-. 2. The brief facts of the case are as follows: The first appellant is the legally wedded wife of the deceased and the second appellant is the mother-in-law of the 1st appellant . On 15.10.1996 at about 11.30 AM the deceased was proceeding in a Tractor bearing No. AP 37 U 4557 and trailer No. AP 37 U 4548 for unloading purpose driven by the first respondent, driver of the tractor and trailer in a rash and negligent manner and in high speed and on reaching the outskirts of Duvva Village, the deceased fell down from he tractor and trailer run over the deceased and the deceased was died on the spot. The deceased was a Cooly and was earning Rs. 2000/- per month. Hence, claimants wife and mother of the deceased filed a claim petition claiming compensation of Rs. 1,00,000/-. 3. The second respondent-owner of the tractor and trailer, filed written statement, which is adopted by the first respondent-driver stating that the police filed false case against the first respondent-driver and because of bad condition of road, the accident had occurred and the driver was having valid licence. The third respondent-Insurance Company filed written statement denying the petition allegations and also stating that the petition is liable to be dismissed. 4. On behalf of claimants, PWs 1 to 8 were examined and Exs. A-1 to A-6 were marked. On behalf of third respondent-Insurance Company RW-1 is examined and Exs. B-1 to B5 and Ex. D1 were marked. 5. On the basis of the above pleadings, the following issues were settled for trial. 1. Whether the decease died due to rash and negligent driving of the driver of the tractor and trailer bearing Nos. AP 37 U 4547 and AP 37 U 4548 respectively? 2. Whether the petitioner is entitled to claim compensation? If so, to what amount and from which of the respondents? 3. To what relief? 6. On consideration of the oral and documentary evidence, the Tribunal came to the conclusion that since the accident occurred due to rash and negligent driving of the driver of the accident tractor and trailer and as a result of which, the deceased fell down and succumbed to the injuries and the respondents 1 and 2 being owner and insurer respectively of the tractor and trailer, are jointly and severally liable to pay the compensation to the claimants. It also held that the deceased was not an unauthorized passenger traveling in the tractor and trailer. In order to determine the loss of dependency, as the deceased was aged 35 years by the date of accident and the evidence of PW-1 coupled with Exs. A2 remained unchallenged about the age of the deceased, the age of the deceased was ascertained as 35 years by the date of his death and as per second schedule of the Motor Vehicles Act, the appropriate multiplier for the age 35 is 14. As per the contents, the Tribunal took the income of the deceased at 15,000 per year for the purpose of calculation of compensation and after deducting 1/3r d of the amount, the contribution to the family comes to Rs. 10,000/- and after applying the multiplier the amount comes to Rs. 1,40,000/- (10,000 x 14= 1,40,000/-). As the claim was Rs. 1,00,000/- the Tribunal restricted the claim and granted only Rs. 1,00,000/- together with interest at 9% per annum from the date of petition till the date of payment. Aggrieved by the said compensation, and exonerating the liability of the Insurance Company to pay the compensation, claimants preferred this appeal. 7. The learned counsel appearing for the appellants- claimants contended that the Tribunal ought to have seen that the Insurance Company is liable to pay the compensation to the appellants and in so far as the third party claims are concerned the liability on the insurer will not cease and therefore, the Insurance Company is equally liable to pay compensation. He relied on the judgment reported in D. KRISHNAVENI AND OTHERS VS. MOHD. SIKANDER AND ANOTHER[1] 8. The point that arises for consideration is whether the Insurance Company can be exonerated from it liability? 9. As seen from the record, it is no doubt true that the accident occurred due to rash and negligent driving of the driver of the accident tractor and trailer, the first respondent and the second respondent, being driver and owner respectively of the tractor and trailer are jointly and severally liable to pay the compensation to the claimants. It is also no doubt true that the deceased was working as coolly and getting income of Rs. 100/- per day and the Tribunal taken the income of the deceased at Rs. 15,000/- per annum and calculated the contribution to the family at Rs. 10,000/- after deducting 1/3rd of the amount and applied multiplier 14, thus the claimants are entitle to Rs. 1,40,000/- but they restricted their claim to Rs. 1,00,000/- the Tribunal granted Rs. 1,00.000/- to the claimants as compensation. 10. In this particular case, claimants preferred the present appeal aggrieved by exonerating the liability of the Insurance Company for payment of compensation. Owner of the vehicle in this case was father and the son was the driver, who was driving the vehicle at the time of accident. Notice was issued by the Insurance Company to the driver and owner of the vehicle to produce the driving licence but they have not produced the particulars of the driving licence. The burden of proof is not a permanent one when once notice has been issued by the Insurance Company, the Insurance Company will be discharged from its burden and burden shifts on the claimants to produce the particulars of the driving licence. Therefore, the decision reported in D. KRISHNAVENI AND OTHERS VS. MOHD. SIKANDER AND ANOTHER (supra –1) relied on by the learned counsel appearing for the appellants is not applicable to the facts and circumstances of the present case. Therefore, the Tribunal has rightly exonerated the liability of the insurance company and I see no reasons to interfere with the order passed by the Tribunal and the Civil Miscellaneous Appeal is liable to be dismissed. 11. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. _____________________ GHULAM MOHAMMED, J Date: 15.07.2010 KA [1] 2010(1)ALD 194