THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 1721 of 2011 JUDGMENT: The appeal is filed by the petitioners in O.P.No.298 of 2004 on the file of the Chairman, Motor Vehicle Accident Claims Tribunal-cum- III Additional District Judge, Karimnagar questioning the validity of the order dated 25.02.2005. The application was filed for compensation of Rs.1,50,000/- consequent on the death of the deceased Annam Prameela, the mother of the appellants herein, in a motor accident. According to the case of the petitioners, on 30.12.2003 while the deceased was proceeding in an auto bearing No.AP-15-V-7265 at about 1.30 p.m. from Chinna Papaiahpalli to Huzurabad, near K.C. Camp, she fell down and sustained injuries and was shifted to the hospital and died due to injuries. According to the case of the petitioners, due to rash and negligent driving of the driver of the auto the incident happened. The deceased was earning Rs.3,000/- per month and the petitioners claimed a compensation of Rs.1,50,000/-. The 1st petitioner is the son and the 2nd petitioner is the daughter, who was married. The respondents 1 and 2, who were driver and owner, filed written statement disputing the claim of the petitioners as excessive and also contending that the vehicle was insured with the 3rd respondent and which is liable for the same. The 3rd respondent insurance company filed a written statement putting strict proof of the contents of the petition and contending that the driver of the vehicle had no valid driving licence and the deceased herself was negligent in sitting in the auto and she was not earning so much and it is not liable to pay the compensation. On the basis of the above pleadings, the following issues have been framed for trial: 1. Whether the accident occurred due to the rash and negligent driving of the driver R1 by auto bearing No.AP-15-V-7265? 2. Whether the petitioners are entitled to compensation and from whom and what amount? 3. To what relief? On behalf of the petitioners, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-4. On behalf of the respondents, R.W.1 was examined and marked Ex.B-1. After considering the evidence on record, the lower Tribunal found that the deceased was traveling in the auto with paddy and was not properly seated and, therefore, there is no rashness and negligence on the part of the driver of the vehicle, but, however granted compensation of Rs.50,000/- under no fault liability and it was also found that the insurance company is not liable to pay the amount. As can be seen from the evidence of P.W.1, who is said to be the son of the deceased, the deceased got boarded in the auto along with two paddy bags and subsequently the incident happened. The weight of the paddy bags was said to be 25 kgs. His evidence also goes to show that he lodged the complaint Ex.A-1 and he is not an eye witness to the incident. Evidently, as can be seen from the order of the lower Tribunal, it is mentioned as paddy bags but how many paddy bags were carried and their weight was not mentioned and, therefore, according to the reasoning of the lower Tribunal, the evidence of P.W.1 that the deceased was carrying 25 bags of paddy cannot be accepted. The fact remains that the evidence of P.W.1 clearly goes to show that he was present when the deceased boarded the auto and he came to know about the accident. Therefore, in such circumstances, he is the best person to speak about the number of bags that were carried in the auto by the deceased. If the insurance company was interested in disputing the panchanama at the scene of incident or other particulars would have been filed before the lower Tribunal. Therefore, the absence of the proof of bags in the complaint will not discredit the evidence of P.W.1. The evidence of P.W.2 goes to show that she is an eye witness to the incident and according to her she along with the deceased travelled in the auto and the evidence of P.W.2 was not believed because she was not able to say the weight of the paddy bags. Her evidence clearly goes to show that the driver of the auto drove it in a zigzag manner and the deceased fell down from the auto. Evidently, it is not even the case of the petitioners that the auto has dashed against any other vehicle and turtled. According to the evidence of P.W.2, the paddy bags were kept on the foot board of the auto and they kept their foot on the paddy bags. The reasoning of the lower Tribunal that even if the auto goes in high speed, there is no chance of falling a person from the auto, if they are sitting on the paddy bags, cannot be accepted. It is common knowledge that whenever any paddy bag is kept, it will be kept near the feet of the passenger. The fact that the deceased has fallen from the auto, which was in use, is not in dispute. But, for the rash and negligent driving of the auto by its driver in a zigzag manner as deposed by P.W.2, there is no reason for the fall of the deceased from the auto. No person would have fallen from the moving vehicle for the rashness or negligence of the driver of the vehicle or for any other reason. In this case, the insurance company is not able to say any reason as to why the deceased has fallen from the auto. Even if the deceased was to sit on the paddy bags, still the fall could have been only due to the rash and negligent driving of the auto by its driver and consequently it is a fall when the vehicle was in use and due to the fault of the driver of the auto. In such circumstances, it cannot be said that the deceased herself has contributed to the incident and received the injuries and died. The whole reasoning of the lower Tribunal in coming to the conclusion is not proper and on the other hand, as can be seen from Ex.A-2 and also Ex.A-3, the charge sheet filed by the police after the investigation, the incident is said to have happened due to rash and negligent driving of the auto by its driver. Therefore, for the above reasons, I hold that the deceased died due to rash and negligent driving of the auto only. So far as the contention that the goods were carried in the auto and, therefore, the insurance company is not liable, is concerned, there is also no strength in the argument. Evidently, what was carried in the auto along with the deceased can only be for her personal use and the rice bags are said to be weighing about 25 Kgs. and two rice bags are being carried and that there is no prohibition of carrying personal goods of a passenger in the auto. The prohibition is only when the transport vehicle is used for non-transport purposes and there can be any plea tenable on behalf of the insurance company that in a transport vehicle when the passenger is being carried the goods, the insurance company is not liable to pay the compensation. On this ground also the reasoning of the lower Tribunal is not proper. So far as the compensation is concerned, evidently, the 1st petitioner is a major and earning by himself and the 2nd petitioner is already married and they cannot be said to be the dependants on the deceased and they must have lost love and affection of their mother. Therefore, I feel the ends of justice would meet, if a compensation of Rs.75,000/- (Rupees seventy five thousand only) is granted to the petitioners on all counts. Accordingly, the order of the lower Tribunal is set aside and the petitioners are entitled for a compensation of Rs.75,000/- (Rupees seventy five thousand only) payable by all the respondents jointly and severally with interest at 7.5% per annum from the date of petition till the date of realization. The apportionment as made by the lower Tribunal is confirmed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 24-08-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 1721 of 2011 DATE: 24-08-2011 MR