IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.2908 of 2005 Between: The Oriental Insurance Co. Ltd., Rep. by its Branch Manager, Bharat Complex, Rajahmundry. .. Appellant AND Sita China Appa Rao & 7 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.2908 of 2005 JUDGMENT: This appeal is directed against the award in M.V.O.P.No.604 of 2001, on the file of the Motor Accidents Claims Tribunal-cum-VI Additional District Judge (Fast Track Court), East Godavari at Rajahmundry, dated 13.06.2005. 2. The factual background for the appeal is that the claimant was travelling in lorry No.AP 31T 4177 sitting on the body on 23.09.1998 and he claimed to have been engaged as a loading and unloading coolie on the lorry. At about 4.30 p.m., the lorry turned turtle due to the rash and negligent driving by the first respondent near Dasari Cheruvu, Rajupalem and the claimant received multiple injuries all over the body. He was treated at the Government Head Quarters Hospital, Rajahmundry and still he was left with a permanent disability of his right hand with restricted movements of limbs. He was earlier earning Rs.100/- per day as a coolie and he spent about Rs.25,000/- towards medical expenses. The claimant, therefore, sought for a compensation of Rs.2,00,000/- from the owner, driver and insurer of the lorry. 3. While the driver remained ex parte before the Tribunal, the owner denied the allegations of the claimant and contended that he never gave any employment to or engaged the petitioner for any purpose. He claimed the first respondent also to be not negligent and the claimant himself to be guilty of contributory negligence. In any view, the second respondent/owner contended that the insurer/third respondent is liable to pay any compensation and not respondents 1 and 2. 4. The insurer/third respondent also denied the allegations of the claimant and contended that the claim is excessive and is liable to be negatived. 5. The Tribunal framed issues about the claimant sustaining injuries in the accident, the responsibility for the accident, the entitlement of the claimant to compensation and to what quantum and from whom. 6. The Tribunal examined P.Ws.1 to 3 and R.W.1 and marked Exs.A-1 to A-7, B-1 and B-2 during the enquiry. 7. The Tribunal rendered the impugned award firstly accepting the evidence of P.W.1 corroborated by Exs.A-1 to A-4, the First Information Report, the Charge Sheet, the Wound Certificate and the Motor Vehicle Inspector’s Report, as proving that the first respondent was solely responsible for the accident with his rash and negligent driving. The Tribunal then referred to the claims of P.W.1 about the injuries and the treatment and further referred to Ex.A-3-Wound Certificate, Ex.A-5-Case Sheet, Ex.A-6-X-rays and the evidence of P.W.2, the doctor. The Tribunal noted that the evidence of P.W.2 revealed the claimant sustaining a disability of right elbow and left wrist to an extent of 45% with stiffness and restricted movements of the right elbow. The Tribunal, however, noted that the contentions to the contrary by the insurer cannot be sustained when P.W.2 was supported by Ex.A-3-Wound Certificate, Ex.A-5-Case Sheet and Ex.A-6-X-rays relating to the 14 injuries including three fracture injuries. The permanent disability of 45% for the right hand and 2% for the right foot were, hence, upheld. The Tribunal consequently held the claimant to be entitled to Rs.3,000/- towards transport, Rs.3,000/- towards extra nourishment and Rs.3,000/- towards attendant charges. In the absence of any specific evidence, the Tribunal assessed the medical expenses at Rs.10,000/- and loss of earnings were awarded at Rs.1,500/- per month for six months in the light of the three fractures and surgeries. For the three grievous injuries Rs.45,000/- and for the 11 simple injuries Rs.16,500/- were awarded towards pain and suffering and mental agony and a further sum of Rs.10,000/- was awarded under the same head for the suffering during the surgeries. The Tribunal also considered that the disability permanently suffered by the claimant made him unfit for attending the coolie work and has to be considered as 100% disability with reference to his avocation. While his age was noted to have been mentioned as 40 years in Ex.A-3-Wound Certificate, his monthly income was considered as Rs.1,500/- per month with reference to the minimum wages payable under the Minimum Wages Act, 1948, at the relevant time. Applying a multiplier of 15, the claimant was held entitled to Rs.2,70,000/- towards permanent disability. The total compensation was, hence, calculated at Rs.3,69,500/- and as the claimant sought for a compensation of only Rs.2,00,000/-, the award was confined to the said sum. 8. The Tribunal further considered that Ex.A-1-First Information Report mentioned the claimant to have boarded the crime vehicle mid way without any details about the capacity in which he boarded the vehicle. It also noted that the first informant was claimed to be not knowing the details of the other passengers, while P.W.3 claiming to be a co-traveller supported the claim that the claimant was travelling as a loading and unloading coolie. The claims of P.W.3 were noted to have been not subjected to any cross-examination and as it was probablised that the claimant was travelling as a loading and unloading coolie, the third respondent is also jointly and severally liable to pay the compensation. Consequently, the impugned award was passed with interest at 6% per annum on the compensation from the date of the petition till the date of realization and proportionate costs. 9. The insurer challenged the said award in this appeal contending that the claimant was an unauthorized passenger as proablised by the evidence on record in respect of whom the insurer would not have been made liable. He was a passenger as stated in the earliest version and the grant of compensation and assessment of the same were incorrect. Hence, the insurer desired the impugned award to be reversed. 10. As the first respondent died during the pendency of the appeal, his legal representatives were brought on record as respondents 4 to 8 as per orders in M.A.C.M.A.M.P.No.4195 of 2010. 11. Smt. W.V.S. Rajeswari, learned counsel for the appellant, Sri S.Siva Bhami Reddy, learned counsel for the claimants and Sri K. Venkatesh, learned counsel for the owner of the vehicle are heard. 12. The conclusion of the Tribunal about the responsibility of the first respondent for the accident with his rash and negligent driving was not challenged by any party and has become final. The ownership of the lorry with the second respondent and its valid and subsisting insurance with the third respondent to the claim are also not in dispute. The nature of travel of the claimant in the lorry and the quantum of compensation alone are the issues in controversy between the parties in this appeal. 13. On the first aspect of the nature of travel of the injured in the lorry, while the version of the injured himself as P.W.1 is necessarily tainted with interestedness requiring independent corroboration, P.W.3 claiming to be travelling in the same lorry attempted to provide such corroboration. In fact he was also a claimant in O.P.No.39 of 2000 against the same respondents in respect of the injuries suffered by him during the same accident and the matter was settled before the Lok Adalat on 11.03.2000 with Rs.25,000/- being awarded as the compensation against the insurer also. The travel of P.W.3 in the lorry along with the injured P.W.1 was, thus, probablised by Ex.A-7-copy of Lok Adalat Award, dated 11.03.2000, and there is no strong reason to discredit his evidence altogether though being a claimant himself in respect of the accident, he is no independent witness. The owner of the vehicle in his written arguments before the Tribunal, a copy of which is furnished by the learned counsel for the claimant, stated that the claimant may be a labourer for the purpose of loading and unloading but not an employee on the vehicle. He again admitted that the owner of the goods engaged the claimant as a loading and unloading labourer. The owner of the vehicle, therefore, contended that the injured was not an unauthorized passenger and was entitled to compensation, which argument is opposed to his specific pleading. The evidence of R.W.1 for the insurer is with reference to Ex.A-1-First Information Report, wherein the claimant was referred to as a passenger travelling in the vehicle having boarded the lorry mid way. R.W.1 obviously had no personal knowledge, while Ex.A-2-Charge Sheet throws no light on the capacity in which the injured was travelling in the lorry. Under the circumstances, it cannot be concluded with certainty either that the claimant was travelling only as a gratuitous or unauthorized passenger in the lorry or as a loading and unloading labourer engaged by the owner of the goods or the owner of the lorry. The subsistence of a valid insurance policy for the vehicle indemnifying the owner from the liability to third parties is admitted as seen from Ex.B-1-Insurance Policy and Ex.B-2- Goods Carriage Permit cannot be considered to have been violated if the injured was travelling in the vehicle as a loading and unloading coolie. Under the circumstances, as pointed in P. VENKATA RAMANA VS. CHINTAGUNTLA KUMARI AND OTHERS[1] it is to be presumed that it is not uncommon that coolies or labourers have to be taken along with the vehicles for unloading and after that work is over, they be brought back to the place from where they were picked. When the deceased was engaged as a coolie for unloading the vehicle, the learned Judge upheld the liability and similarly, in NEW INDIA ASSURANCE CO. LTD., VISAKHAPATNAM VS. KORU KONDA APPA RAO AND ANOTHER[2], a learned Judge of this Court was of the opinion that in such cases, the insurance company has to pay the compensation to the claimants firstly and recover the same from the owner of the vehicle in terms of the contract of insurance. As in the present case, there was no positive proof of either the claimant being a labourer engaged for loading and unloading or his being a gratuitous passenger and as there was uncertainty in evidence in this regard, the principle of pay and recover can, therefore, be justly and equitably extended and the insurer should be made liable to pay first and recover the same from the owner next. 1 4 . Coming to the quantum of compensation, the assessment of the Tribunal of transport charges, extra nourishment and attendant charges at Rs.3,000/- each, medical expenses at Rs.10,000/-, loss of earnings at Rs.9,000/- and pain and suffering and mental agony in respect of three grievous injuries and 11 simple injuries at Rs.71,500/- cannot be considered too high or liberal. In so far as the permanent disability is concerned, the Tribunal stated that the minimum wages payable under the relevant statute at the relevant time were taken as the basis and for the age of 40 years, the Tribunal adopted a multiplier of 15 which is not deviant from the multiplier adopted by SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER[3]. Still, as the claimant claimed a compensation of Rs.2,00,000/- only, the grant was restricted to the same and interest was also awarded at the minimum at 6% per annum notwithstanding the jurisdiction for the Tribunal to grant just and adequate compensation beyond what was claimed by the claimant. The Tribunal was conservative in confining it to what was claimed and, hence, there is no reason to interfere with the compensation awarded. 15. After the filing of the appeal, in M.A.C.M.A.M.P.No.4992 of 2005, the appellant was already directed to deposit half of the decreetal amount with interest and costs including the amount already deposited before the Tribunal which was permitted to be withdrawn by the claimant without furnishing any security and to that extent, in any view, the insurer should be made entitled to recover from the owner of the lorry. The owner of the lorry who himself stated in his pleading that the claimant was neither his employee nor was a loading and unloading labourer engaged by him cannot absolve himself from the liability to reimburse the compensation paid to the insurer as the policy of insurance for the goods vehicle does not cover any indemnity of any passengers travelling in the vehicle. 16. While the award has to be affirmed, further directions have to be given accordingly. 17. In the result, the Civil Miscellaneous Appeal is dismissed without costs, but the third respondent/insurer in M.V.O.P.No.604 of 2001 is entitled to recover the compensation paid by it to the claimant from the owner of the vehicle without the necessity of filing any separate suit or other legal proceedings for the purpose. _____________________ G. BHAVANI PRASAD, J Date: 1st March, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.2908 of 2005 Date: 1st March, 2011 KL [1] 2010 (2) ALD 281 [2] 2010 (6) ALD 566 [3] 2009 ACJ 1298