IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.No.1450 of 2008 DATE:17.06.2010 Between: The Regional Manager, Bajaj Allianz General Insurance Company Limited. …… Appellant/2nd respondent And: Begari Yesumani and others. …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A. No.1450 of 2008 JUDGMENT : Insurance company is the appellant. The appellant questions not only liability but also quantum of compensation in this appeal. At the outset it is contended that since it is a head on collision, there is contributory negligence on the part of opposite tractor driver. In this case the auto was carrying six persons as against capacity of 3+1. It is further contended that since there are more passengers in the auto than permitted number, there is violation of policy conditions and that therefore applying decision of the Supreme Court in National Insurance Company Limited Vs. Anjana Shyam[1], direction should have been given by the lower Court for reimbursement of the compensation amount after the insurance company pays the same to the claimants. It is further contended by the appellant’s counsel that there is another violation of policy conditions as driver of the insured auto was not having driving licence. 2) In so far as quantum of compensation is concerned, the lower Tribunal determined income of the deceased at a basic minimum of Rs.3,000/- per month which works out at Rs.100/- per day. The lower Tribunal deducted 1/3rd thereof towards personal expenses of the deceased and after arriving at yearly dependency of the claimants, multiplied same with multiplier of 14.8 on the ground that the deceased was aged 35 years. Selection of the said multiplier is also proper having regard to age of the deceased mentioned in P.M. certificate as 35 years. Thus, this Court does not find any error in calculation of quantum of compensation by the lower Tribunal. 3) The insurance company did not let in any evidence to show that the driver of the insured vehicle was not having driving licence. Ex.A-5 Motor Vehicle Inspector’s report states that the driver did not produce driving licence. Non production of driving licence does not tantamount to having no licence at all. The burden is on insurance company to prove violation of conditions of policy and that there is no driving licence for the insured vehicle driver. The appellant did not lead any positive evidence in that regard in the lower Tribunal. Naturally driver of the insured vehicle remained exparte in the lower tribunal. In the absence of proof of there being no driving licence, the insurance company cannot be allowed to say that there is violation of policy conditions on this aspect. 4) There is no dispute that there were six passengers in all in the ill-fated auto. Simply because there is over loading in the auto, the insurance company cannot absolve itself from liability. In such a situation, the Supreme Court in the above reported decision held that liability of the insurance company will be limited to the number of allowed passengers in the vehicle who put in their claims. In the case on hand, even though there were six passengers in all in the ill-fated auto, there were only two deaths and there were only two claims. Both the claims are within the permissible limit of passengers covered by the insurance policy. Therefore, the insurance company cannot avoid its liability on this ground also. 5) In so far as contributory negligence is concerned, the insurance company did not lead any evidence to prove contribution of any negligence by the opposite tractor driver. P.W-2 who is one of the passengers in the auto deposed that auto driver drove the auto in rash and negligent manner and dashed the same to a tractor coming in opposite direction, due to which the accident occurred. So, the only eye witness examined throws the entire blame on the auto which is insured with the appellant. There is no indication in evidence of P.W-2 that the tractor driver contributed any negligence for this accident. Hence, I find that there is no contributory negligence in this case on the part of the opposite vehicle. 6) Thus, the lower Court considered entire material on record rightly and awarded compensation of Rs.3,00,000/- to the claimants. The appellant fails on all the points urged in this appeal. 7) Hence, the appeal is dismissed with costs. _______________________________ SAMUDRALA GOVINDARAJULU, J June 17, 2010 KSH [1] 2007(7) SCC 445