IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTH DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.2809 OF 2007 Between: Sudhakar P.V.C. Products ..... Appellant AND Palwai Uppalaiah & another ..... Respondents AND M.A.C.M.A.No.47 OF 2008 Between: The Oriental Insurance Company Limited ..... Appellant AND Palwai Uppalaiah & another ..... Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.Nos.2809 OF 2007 & 47 of 2008 COMMON JUDGMENT: Both the Civil Miscellaneous Appeals are directed against the award in O.P.No.30 of 2004 (O.P.No.590 of 2001), on the file of the Motor Accidents Claims Tribunal cum II Additional District Judge, Nalgonda, at Suryapet, dated 14.09.2007. 2. The first respondent herein claimed to have travelled in D.C.M. Van No.AP24U 591, owned by the appellant in M.A.C.M.A.No.2809 of 2007 and insured with the appellant in M.A.C.M.A.No.47 of 2008 on 05.08.2000, paying charges for himself and rice and grain bags being carried in the van to the driver. On the way to his native place, at about 12 mid night, in the outskirts of Chityal, near Nagalaxmi Hotel, the van was driven rashly and negligently and dashed a parked lorry No.ATK 8286. The first respondent/claimant sustained grievous injuries and fractures and was treated at the hospitals, but still his left elbow was amputated. Chityal Police registered Crime No.63 of 2000 and the claimant earning Rs.3,000/- per month earlier as a rickshaw puller, is not in a position to do his normal work and hence, claimed a compensation of Rs.3,00,000/- from the owner and insurer of the D.C.M. Van. 3. The owner of the vehicle denied the claims of the first respondent and claimed to be not liable to pay any compensation as the vehicle was insured with the appellant in M.A.C.M.A.No.47 of 2008. 4. The appellant, who is the insurer, in M.A.C.M.A.No.47 of 2008 also denied the claims of the claimant and sought for protection under Sections 148 and 149 of the Motor Vehicles Act, 1988. The claim was claimed to suffer from non-joinder and mis-joinder of parties and also to be excessive. 5. The Tribunal framed issues about the responsibility for the accident, the vitiation of the claim due to non-joinder and mis-joinder of necessary and proper parties and the entitlement of the claimant to compensation. 6. P.Ws.1 and 2 and R.W.1 were examined and Exs.A-1 to A- 14 and Ex.B-1 were marked during the course of enquiry. 7. The Tribunal rendered the impugned award accepting the evidence of the injured-P.W.1 corroborated by Ex.A-1-First Information Report, Ex.A-3-attested copies of statements of witnesses recorded under Section 161 of the Code of Criminal Procedure, 1973, Ex.A-4-Charge sheet, Ex.A-5-Accident Information Report, Ex.A-6-Panhanama for the scene of offence and Ex.A-7-Order in S.T.C.No.44 of 2001, on the file of the Judicial Magistrate of First Class, Ramannapet, and concluded that the accident occurred only due to the negligence of the driver of the D.C.M. Van. The Tribunal further concluded that in the absence of any negligence on the part of the lorry driver, the question of the claim being bad for non-joinder of parties did not arise. Coming to the quantum of compensation, the Tribunal noted that the claimant was first shifted to Headquarters Hospital, Nalgonda, from the scene of the accident and then to Osmania General Hospital, Hyderabad, and the claim for Rs.5,000/- towards transport charges was considered reasonable. Concerning the medical expenses, the Tribunal relied on Ex.A-10-medical bills for Rs.40,790/- and referring to two binding precedents on the aspect, allowed the said amount to the claimant against the respondent. The Tribunal noted that amputation of left upper limb, fracture of right humerus and grievous injury to the scalp deserve a compensation of Rs.25,000/- towards pain and suffering. The Tribunal also considered the claimant, a rickshaw puller, to be earning not less than Rs.2,000/- per month as even a labourer will be getting Rs.2,000/- per month under the Minimum Wages Act at the relevant time. On such assessed income of Rs.2,000/- per month, the loss of income or earning capacity was considered to be Rs.1,400/- commensurate with 70% disability suffered by the claimant. The age of the claimant was taken as 30 years as mentioned in Exs.A-2, A-4 and A-5, though the petition mentioned it to be 25 years and the disability certificate mentioned it to be 28 years and also with reference to the wife of the petitioner herself being mentioned to be aged 25 years. Applying a multiplier as per the Second Schedule to the Motor Vehicles Act, 1988, the total loss of future earnings due to the disability was assessed at Rs.2,85,600/-, but as the claimant claimed only Rs.2,25,000/- the same was restricted to such amount. 8. Dealing with the question whether the claimant was a gratuitous passenger, the Tribunal concluded from the silence in Ex.A-1-First Information Report about the claimant carrying or not carrying any goods or luggage in the van, that he has to be termed as a gratuitous passenger. Noting that admittedly he was a gratuitous passenger, the Tribunal considered it appropriate to direct the insurer to pay the amount of compensation and recover the same from the owner of the vehicle. Interest was awarded at 7.5% per annum with reference to the precedents and therefore, on the total compensation of Rs.2,95,790/- with such interest, proportionate costs also were awarded and the insurer was directed to first pay the compensation and recover the same from the owner of the vehicle without any separate proceedings for the purpose. 9. The owner of the vehicle in M.A.C.M.A.No.2809 of 2007 challenged the said award contending that the driver of the van was a necessary party and the driver was never authorized to carry any person in the vehicle. The driver permitting the claimant to travel in the vehicle, cannot make the owner responsible. Apart from the unauthorized nature of the travel of the claimant, the Tribunal allowing transportation charges, medical expenses and pain and suffering and assessing his income as a rickshaw puller at Rs.2,000/- per month, apart from applying a multiplier of 17 were without any basis. 10. The insurer in M.A.C.M.A.No.47 of 2008 contended that the claimant being admitted and proved to be gratuitous passenger could not have fastened any liability to the insurer when he was not covered by the policy of insurance and only in cases covered by SATPAL SINGH’s case, Apex Court extended the principle of pay and recover against the insurer but not in all cases. The insurer also questioned the assessment of the income of the claimant at Rs.2,000/- per month and grant of Rs.5,000/- towards transportation charges. 11. Sri C. Upendra, learned counsel for the appellant in M.A.C.M.A.No.2809 of 2007 and Smt I. Maamu Vani, learned standing counsel for the appellant in M.A.C.M.A.No.47 of 2008 and Sri R. Srinivas, learned counsel representing Sri K. Vinay Kumar, learned counsel for the claimant are heard. 12. The points that arise for consideration are: 1. Whether the insurer should pay compensation and recover the same from the owner? 2. Whether the quantum of compensation awarded by the Tribunal is just and adequate? 13. POINT NO.1: Insofar as the finding of the Tribunal about the responsibility for the accident being with the driver of the D.C.M. Van due to his rash and negligent driving is concerned, none of the parties challenged the same and the said conclusion having become final, neither the driver nor the owner, nor the insurer of the stationed lorry are necessary or proper parties. Concerning the claim that the driver of the D.C.M. Van is a necessary party in the absence of whom the claim is not maintainable, the appellant in M.A.C.M.A.No.2809 of 2008 has not brought to notice any binding precedent on this aspect and the vicarious liability of the owner of the vehicle for the misdemeanors of his employee cannot be escaped from. However, when it comes to the liability of the insurer, admittedly the D.C.M. Van is a goods vehicle not intended to carry any passengers. Though the claimant appeared to have claimed to be carrying rice and grain bags in the van and to have paid charges for himself and the goods to the van driver, the impugned award or the material on record do not show that the goods being carried in the vehicle belonged to the claimant and the claimant was travelling in the vehicle as the owner or the authorized representative of the owner of the goods. The Tribunal has specifically noted that the earliest version in Ex.A-1-First Information Report did not convey the claimant to be carrying either any goods or any luggage in the van and referred to a decision of this Court in DEDDULA PADMAVATHI AND OTHERS VS. MADDALA SRINIVASA RAO AND ANOTHER[1], wherein the learned Judge held that any luggage carried by a passenger will not fall within the scope of the word “goods” within the meaning of the Motor Vehicles Act, 1988. Such a person was held to be not claiming to have engaged the goods vehicle for the conveyance of the goods. The Tribunal further noted that the status of the claimant as a gratuitous passenger was admitted and if so, it is seen from Ex.B-1- insurance policy and evidence of R.W.1 that no liability could have been fastened to the insurer in this regard. 14. Coming to the principle of pay and recover, which appears to have been extended in this case by the Tribunal, the Apex Court in NATIONAL INSURANCE COMPANY VS. PARVATHNENI AND ANOTHER[2] had expressed an opinion that if the insurance company proves that there is no liability to pay compensation to the claimants, the insurance company cannot be compelled to make payment and later on, recover it from the owner of the vehicle. Decisions which have taken a contrary view were referred to and consequently, the matter was directed to be placed before the Honourable the Chief Justice of India for constituting a larger bench to decide the question. Even otherwise, the principle of pay and recover appears to have been extended, from the observations in the decision, in exercising the powers conferred under Article 142 of the Constitution of India, which are not available to this Court or the Tribunal. I n NATIONAL INSURANCE CO. LTD. VS. BOMMITHI SUBBAYAMMA[3], the Apex Court was dealing with the case of a gratuitous passenger and noted that the insurance company was held not liable for payment of any compensation in respect of the gratuitous passenger travelling in a goods vehicle as held in NEW INDIA ASSURANCE CO. LTD. VS. ASHA RANI[4], which was followed in subsequent decisions. The Apex Court clearly observed that it was not the intention of the statute to provide for the liability of the insurer with respect of, especially gratuitous passengers, who were neither contemplated at the time of the contract of insurance or covered by any premium paid by the insured. It is true that in some decisions, the principle of pay and recover was expanded, but in the present case, in the light of the admitted facts and circumstances, there will be no justification for extending the principle of pay and recover against the insurer and drive the insurer to further proceedings against the owner for recovery of such amount. Hence, it is to be concluded that the insurer need not be made liable to pay the compensation. 15. POINT NO.2: Insofar as the amount awarded towards transport to hospital at Rs.5,000/- is concerned, the admitted travel from the scene of accident to Nalgonda and from there to Osmania General Hospital, Hyderabad, and back to the place of residence of the claimant in Nalgonda district has to be compensated and the sum of Rs.5,000/- granted towards the same cannot be considered unreasonable or excessive. The medical expenses were reimbursed only to the extent of the amount covered by Ex.A-10-medical bills and when P.W.1 the person who paid the amounts of the bills, examined himself, proof of the same cannot be considered to be lacking. Amputation of a limb, fracture of right humerus and a grievous injury on his scalp, extending from his forehead to his occipital region cannot be considered to have been excessively compensated towards pain and suffering when the Tribunal awarded Rs.25,000/- towards the same. Though the owner of the vehicle is contending that the claimant, a rickshaw puller, earning Rs.2,000/- per month is excessive, the Tribunal referred to the minimum wages payable even to a labourer at the relevant time and such an estimate is not shown by any contrary material to be excessive, by the owner of the vehicle who did not produce any oral or documentary evidence before the Tribunal. Insofar as the age is concerned, the Tribunal erred on the right side in computing the age as 30 years, though it was claimed to be 25 years by the claimant. It referred to the mention in Ex.A-4- charge sheet, Ex.A-5-information of the accident and Ex.A-2- wound certificate which references must have been made by the police and the Medical Officer on the enquiry made by them at the earliest point of time. Though the owner of the vehicle is questioning the application of the multiplier as 17 as per the Second Schedule to the Motor Vehicles Act, 1988, it is seen that though the claimant was assessed to be entitled to Rs.2,85,600/- under this head, the grant of the claim was restricted only to Rs.2,25,000/- as claimed in the claim petition and hence, any marginal variation in the multiplier also could not have made any difference to make the owner liable for a lesser amount. Interest also is awarded at a reasonable scale of 7.5% per annum following a binding precedent and proportionate costs only were awarded and under the circumstances, the quantum of compensation does not appear to be susceptible to any interference. 16. In the result, while the owner’s appeal should fail, the insurer’s appeal should succeed, but in the peculiar circumstances, without costs. 17. In the result, the award, dated 14.09.2007, in O.P.No.30 of 2004, on the file of the Motor Accident Claims Tribunal cum II Additional District Judge, Nalgonda, at Suryapet, is set aside against the second respondent therein and is confirmed against the first respondent therein and M.A.C.M.A. No.47 of 2008 is allowed and M.A.C.M.A. No. 2809 of 2007 is dismissed, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 7th October, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.Nos.2809 OF 2007 & 47 of 2008 October 7, 2010. KL [1] 2004 (5) ALD 228 [2] (2009) 8 SCC 785 [3] (2005) 12 SCC 243 [4] (2003) SCC CRL. 493