THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL Nos.1821 OF 2002 & 3003 of 2000 DATED: 25-11-2009 Between: Sandiboyina Venkata Subbamma & 3 others. ..... APPELLANTS And P.Venkatasubbaiah & 2 others. .....RESPONDENTS COMMON JUDGMENT: These appeals arise out of the common judgment, dated 19-03-1996, in O.P.No527 of 1992 and 603 of 1992 on the file of the Motor Vehicles Accidents Claims Tribunal-cum-II Additional District Judge, Kadapa, wherein the claim of the appellants in O.P.No.603 of 1992, which was filed under Section 166 of the Motor Vehicles Act, 1988 ( for brevity, ‘the Act’), was allowed in part awarding compensation of Rs.46,088/- and the claim in O.P.No.527 of 2002, which was filed under Section 140 of the Act, was allowed in part awarding compensation of Rs.25,000/- with interest @ 12% p.a. from the date of the petition. 2. Heard learned counsel appearing for the appellants and the learned counsel appearing for the respondents. Perused the record. 3. The appellants filed the claim application seeking compensation of Rs.1,00,000/- on account of the death of the deceased-Venkataiah, who died in a motor vehicle accident that occurred on 23-07-1992. They filed O.P.No.527 of 1992 under Section 140 of the Act claiming compensation of Rs.25,000/- under no fault liability. The 1st claimant is the wife and the claimants 2 to 4 are the minor children of the deceased who were engaged as coolies by S.Mahaboob Sab-P.W.2 for loading and unloading Cheeni fruits in the lorry bearing No…. and that while they were proceeding to … the fruit garden in the said lorry on account of the rash and negligent driving of the vehicle by its driver, the lorry ov returned and the deceased died on the spot. 4. Respondents filed counters opposing the claim and denying their liability to pay the compensation. 5. During enquiry, P.Ws.1 and 2 were examined and Exs.A1 to A4 were marked on behalf of the claimant. R.W.1 was examined and Ex.B.1 was marked on behalf of the respondents. 6. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry by its driver. The Tribunal further held that the claimants are entitled for compensation of Rs.46,088/- and also a sum of Rs.25,000/- under no fault liability. The Tribunal however passed an award only against the owner of the lorry and exonerated the liability … on the ground that the deceased was unauthorized passenger travelling in a goods vehicle. Aggrieved by the said award, these appeals are filed by the claimants. 7. P.W.1-wife of the deceased and P.W.2- the employer of the deceased have testified that on that day the deceased along with others was engaged as coolies for loading cheeni fruits in the lorry and while the deceased and other coolies were proceeding to the cheeni fruit garden in the said lorry the accident occurred. 8. P.W.2 is an independent witness and his testimony that he engaged the deceased and others as coolies for the purpose of loading the cheeni fruits into the lorry is not discredited in any manner. Further in Ex.A1-First Information Report, which was registered shortly after the accident it is stated that the deceased and others were coolies engaged for the purpose of loading and unloading and while they were proceeding in the said lorry to the place of work i.e., from the cheeni fruit garden, the accident occurred. The testimony of P.Ws.1 and 2 is thus corroborated by the contents of Ex.A1-First Information Report, which was registered at the earliest point of time. In ExA2-inquest report also, it is stated that the deceased was travelling in the lorry as a coolie when the accident occurred. Under those circumstances and in view of the oral and documentary evidence available on record to show that the deceased was in fact engaged as a coolie and he was travelling in the lorry in that capacity, at the time of the accident. The finding of the Tribunal that the deceased was unauthorized and gratuitous passenger is unsustainable. 9. The fact that at the time of the accident there was no load of any goods in the lorry does not alter the situation and the deceased could not ceased to be a coolie just because of the absence of the load at that time inasmuch as the oral and documentary evidence on record would show that the deceased having been engaged along with others as a coolie was proceeding to the place of work i.,e., the cheeni fruit garden for carrying out the labour work entrusted to them i.e., loading of the cheeni fruits. Hence, the physical absence of the load in the lorry at the time of the accident is of no consequence in view of the other evidence available on record to establish that the deceased was engaged as a coolie and he was travelling in the lorry in that capacity at the time of the accident. Admittedly, the risk of six coolies is covered by the policy- Ex.B1 which shows that additional premium was paid in respect of the coolies. The 2nd respondent-insurer is therefore held liable jointly and severally to pay the compensation. The finding of the Tribunal exonerating the insurer from the liability is clearly unsustainable and the same is accordingly set aside. 10. Regarding the quantum of compensation, the learned counsel for the appellant would submit that the amount Rs.20/- per day taken by the Tribunal as the income of the deceased is on the lower side. No doubt, the appellants have claimed that the deceased was earning Rs.50/- per day, but there is no evidence to show the same. Having regard to the fact that the accident occurred in the year, 1992, the average income of a coolie taken at Rs.600/- per month as prevalent, at that time is certainly just and reasonable. The deceased was aged 35 years and the Tribunal applied the multiplier 14.82\1 following the guidelines of the decision in Bhagawandas.. and arrived at the loss of dependency in a sum of Rs.71,088/- and awarded Rs.25,000/- out of the same towards no fault liability in O.P.No.527 of 1992 and the balance amount of Rs.46,088/- in O.P.No.603 of 1992. The Tribunal however failed to award any amount towards loss of consortium or loss of estate. It is considered just and reasonable to award a sum of Rs.15,000/- to the 1st claimant towards loss of consortium and Rs.15,000/- towards loss of estate and Rs.2000/- towards funeral expenses, the total compensation comes to Rs.1,03,000/- which can be rounded off to Rs.1,03,000/-. After deducting the amount of Rs.25,000/- awarded towards no fault liability in O.P.No.527 of 1992, the claimants will be entitled for the balance amount of Rs.78,000/- in O.P.No.603 of 1992 in view of the finding that the deceased was a coolie engaged to work in the lorry and the risk of the deceased was covered by the policy, the insurer is also jointly and severally liable to pay the above said amounts along with the owner with interest at 12% p.a. from the date of filing of the petition on the original amount awar4ded by the Tribunal and @ 9% p.a. on the enhanced amount from the date of filing of the appeal. The impugned award is modified accordingly to the extent stated above. 11. In the result, the appeals are allowed in part as stated above. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 25th November, 2009 Tsy