IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTY NINTH (29TH) DAY OF NOVEMBER TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.628 of 2008 Between: Madaraboina Munemma & others … Appellants And: J. Satyanrayana & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.628 of 2008 JUDGMENT: This appeal is directed against the order dated 19.11.2007 in MV OP No.191 of 2005 on the ﬁle of the MACT cum V Additional District Judge, Kurnool at Nandyal, wherein the said application ﬁled by the appellants herein under Section 166 of the Motor Vehicles Act, was allowed in part, awarding compensation of Rs.2,12,000/- with interest at 7.5% per annum from the date of petition, against the owner of the vehicle and dismissing the claim as against the insurer. 2. Heard learned counsel for appellants and the learned standing counsel for the 2nd respondent- insurer. Perused the record. 3. The appellants herein-claimants ﬁled claim application seeking compensation of Rs.3,00,000/- for the death of the deceased Venkata Subbaiah, who died in a motor vehicle accident that occurred on 02.06.2005. The ﬁrst claimant is the wife, and claimants 2 and 3 are the children of the deceased. According to the claimants, the deceased was doing business in dhal and pulses by collecting the same from the ryots of the surrounding villages and selling in kirana shops at Nandyal, Kurnool and Proddatur after getting processed from the mills and that in the course of the said business, on 02.06.2005, he engaged the lorry bearing No.AP 04 T 1123 at Kurnool and loaded red gram bags for the purpose of transporting the same to Nandyal and was also accompanying the said goods in the said vehicle and that at about 9 a.m. when the vehicle reached Thammarajupalli village, on account of the rash and negligent driving by its driver, the vehicle over turned, resulting in the death of the deceased on the spot. It is further pleaded that the deceased was earning Rs.5,000/- per month from the said business. 4. The owner and insurer of the vehicle ﬁled counters, opposing the claim and denying their liability to pay the compensation. During the course of trial, PWs.1 and 2 were examined and Exs.A.1 to A.5 were marked on behalf of the claimants. RWs.1 and 2 were examined and Ex.B.1 copy of the policy was marked on behalf of the insurer. 5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving by its driver. The Tribunal further awarded total compensation of Rs.2,12,000/- with interest at 7.5% per annum. The said ﬁndings are not challenged by way of any appeal. The Tribunal however dismissed the claim as against the insurer on the ground that the deceased was travelling as gratuitous passenger in the lorry, which is a goods carrying vehicle and therefore, his risk is not covered by policy Ex.B.1. Aggrieved by the same, the claimants preferred the present appeal. 6. Learned counsel for the appellants would contend that the Tribunal erred in holding that the deceased was gratuitous passenger, in spite of the oral and documentary evidence adduced establishing the deceased was travelling as owner of the goods and accompanying the same. 7. PW.1 is the wife of the deceased, who testiﬁed about the business the deceased was carrying on and further deposed that on that day the deceased was coming from Kurnool to Nandyal along with load of red gram in the lorry engaged by him. 8. In Ex.A.1 FIR, which was lodged at the instance of the village Talari of Thammarajupalle, it is stated that the deceased was a business man in pulses. Ex.A.2 inquest report also shows that the deceased was doing business in seasonal pulses purchasing the same in the villages and getting them processed in the mills and selling the same to the merchants and in the course of the said business, while travelling from Kurnool along with load of red gram and proceeding towards Nandyal, he died in the accident that occurred at Thammarajupalle. In Ex.A.5 charge sheet also, the police after investigation have stated that the deceased was travelling along with the load of red gram bags from Kurnool to Nandyal. From the oral and documentary evidence available on record, it is clear that the deceased was accompanying the load of red gram bags as owner thereof. It is not a case where the deceased boarded the lorry as a midway passenger with hand luggage, but it is a case where he loaded his goods namely red gram bags in the lorry at Kurnool while it was returning empty from Hyderabad and was proceeding towards Nandyal and the deceased was travelling in the said lorry as owner of the goods and accompanying the same. The Tribunal however treated the deceased as unauthorized and gratuitous passenger on the ground that there was no evidence on record to show that the deceased engaged the lorry by contacting its owner and therefore, the driver must be presumed to have permitted the deceased to travel unauthorisedly. As the lorry after unloading machinery a t Hyderabad, was returning empty, the driver has accepted the load of the deceased for transporting the same from Kurnool to Nandyal, instead of taking the empty lorry. It is a normal practice to accept the load enroute when the lorry is proceeding empty and simply because no trip sheet is produced to show that the deceased has engaged the lorry, no inference can be drawn that the deceased was travelling as a gratuitous passenger, especially, when the evidence on record shows that he was in fact accompanying the load of red gram bags. It is also not a case where the deceased was travelling with hand luggage or a small quantity and in fact he was found accompanying the load of red gram bags. The ﬁnding of the Tribunal that the deceased was a gratuitous passenger is therefore unsustainable, as the same is not based on proper appreciation of the evidence on record. When once, the deceased is found to be travelling in the lorry as owner accompanying the goods, his risk is certainly covered by the policy and the insurer cannot avoid its liability. 9. Regarding the quantum, the claimants have claimed that the deceased was earning Rs.5000/- from dhal business, but they have not adduced any evidence in that regard. The Tribunal has therefore estimated the income of the deceased at Rs.1500/- per month, which comes to Rs.18,000/- per annum and after deducting 1/3rd towards personal expenses, estimated the contribution of the deceased to the family at Rs.12,000/- per annum and applying the multiplier ‘16’ which is appropriate to the age of the deceased, the Tribunal estimated the loss of dependency at Rs.1,92,000/- (Rs.12,000/- x 16) and also awarded Rs.10,000/- towards loss of consortium, Rs.10,000/- towards loss of love and aﬀection, thus making up a total compensation of Rs.2,12,000/- However, the claimants are entitled for another sum of Rs.5,000/- towards loss of estate and Rs.5,000/- towards funeral expenses as well. 10. In the circumstances, the claimants are held entitled for a total compensation of Rs.2,22,000/- with interest at 7.5% per annum on the original amount awarded by the Tribunal from the date of petition and at the rate of 6% per annum from the date of appeal, till the date of realization. Both the insured and insurer are held jointly and severally liable to pay the said amount to the appellants-claimants and they are directed to deposit the same within eight weeks from the date of receipt of the copy of this order. The impugned award is modified accordingly. 11. In the result, the appeal is allowed to the extent stated above. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 28.11.2011 bss