1 APHC010210212019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3505] THURSDAY, THE TWELFTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL No. 781/2019 & CROSS OBJECTION No.25/2024 Between: 1.THE ORIENTAL INSURANCE COMPANY LTD, REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,TANUKU, W.G. DIST., ...APPELLANT AND 1.TENETI SUNITHA, W/O LATE SURESH @ SRINU, HINDU, FEMALE,AGED ABOUT 22 YEARS, HOUSE WIFE, R/O D.NO. 1-124,KOTHACOLONY, KANTHERU VILLAGE, IRAGAVARAM MANDAL, W.G. DIST., 2.TANETI TAYARAMMA TAYARU, W/O TATA RAO, HINDU, FEMALE,AGED ABOUT 52 YEARS, HOUSE WIFE, R/O D.NO. 1-124,KOTHACOLONY, KANTHERU VILLAGE, IRAGAVARAM MANDAL, W.G. DIST., 3.TANETI TATA RAO, S/O VENKATA RAO, HINDU, MALE,AGED ABOUT 55 YEARS,AGRICULTURAL COOLIE, R/O D.NO. 1-124,KOTHACOLONY, KANTHERU VILLAGE, 2 IRAGAVARAM MANDAL, W.G. DIST., 4.VELAGALA VENKATA REDDY, S/O CHANDRA REDDY, HINDU, MALE, AGED ABOUT 48 YEARS, OWNER OF TRACTOR NO. AP-37-T-6171 AND TRAILER NO. AP 37-T- 6260, R/O D.NO.3-138, KANTHERU VILLAGE, IRAGAVARAM MANDAL, W.G. DIST., ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toTo allow this appeal by setting aside the award and decree dated 07.01.2019 in MVOP. NO. 152/2014 on the file of the Motor Accidents Claims Tribunal - cum - IV Addl. District Judge,W.G. Dist., and dismiss the MVOP No.152/2014 by the Respondent Nos.1 to 3 herein/claim petitioners against the appellant herein Respondent No.2. IA NO: 1 OF 2019 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To condone the delay of 31 days in filing the above appeal against proceedings dated 07.01.2019 in M.V.O.P.No.152/2014 on the file of the Motor Accidents Claims Tribunal - cum - IV Addl. District Judge, W.G. Dist., Tanuku IA NO: 2 OF 2019 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To stay of all further proceedings dated 07.01.02019 in M.V.O.P.No.152/2014 on the file of the Motor Accidents Claims Tribunal - cum - IV Addl. District Judge, W.G. Dist., at Tanuku. IA NO: 1 OF 2021 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, 3 the High Court may be pleased pleased to permit the petitioner to publish the substituted service of notice against the Respondent Nos. 1 & 2 in MACMA No. 781 of 2019 by publishing the same in any local telugu news paper circulated in West Godavari District for Respondent Nos. 1 and 2 and pass such other order or Counsel for the Appellant: 1.A JAYANTHI Counsel for the Respondent(S): 1.A VEERASWAMY 2.TURAGA SAI SURYA Cross Objection No: 25/2024 Between: 1.TANETI SUNITHA, W/O.LATE SURESH @ SRINU, HINDU, FEMALE, AGED ABOUT 27 YEARS, R/O.D.NO.1-124, KOTHACOLONY, KANTHERU VILLAGE, IRAGAVARAM MANDAL, WEST GODAVARI DISTRICT 2.TANETI TAYARAMMA @ TAYARU,, W/O.TATA RAO, AGED ABOUT 57 YEARS, R/O.D.NO.1 -124, KOTHACOLONY, KANTHERU VILLAGE, IRAGAVARAM MANDAL, WEST GODAVARI DISTRICT 3.TANETI TATA RAO,, S/O.VENKATA RAO, AGED ABOUT 60 YEARS, R/O.D.N0.1-124, KOTHACOLONY, KANTHERU VILLAGE, IRAGAVARAM MANDAL, WEST GODAVARI DISTRICT ...PETITIONER(S) 4 AND 1.THE ORIENTAL INSURANCE COMPANY LIMITED, REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, TANUKU, WEST GODAVARI DISTRIC 2.VELAGALA VENKATA REDDY, S/O.CHANDRA REDDY, HINDU, MALE, AGED ABOUT 48 YEARS. OWNER OF TRACTOR NO. AP 37 T 6171 AND TRAILER NO.AP 37 T 6260, R/O.D.NO.3-138, KANTHERU VILLAGE, IRAGAVARAM MANDAL, WEST GODAVARI DISTRICT ...RESPONDENT(S): The Cross Objectors beg to present this Memorandum of Cross Objections against the decree and judgement in M.V.O.P.No.152/20 14 on the file of the Motor Vehicle Accident ClaimsTribunal-cum-IV Additional District Judge, West Godavari at Tanuku dt.07.01.2019, IA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to condone the delay of 1213 days in filing the cross objections and pass such Counsel for the Petitioner(S): 1.A VEERASWAMY Counsel for the Respondent(S): 1. The Court made the following: 5 HON’BLE SRI JUSTICE T.C.D. SEKHAR MACMA No.781 OF 2019 AND CROSS OBJECTION No.25 of 2024 COMMON JUDGMENT:- 1. As both these matters arise out of MVOP No.152 of 2014, on the file of Motor Accidents Claims Tribunal-cum-IV Additional District Judge, West Godavari District, Tanuku, they are being disposed of by this common order. 2. For the sake of inconvenience, the parties are referred to as they were referred before the Tribunal. 3. The petitioners filed claim petition under Section 166 of Motor Vehicles Act claiming compensation of Rs.6,00,000/- on account of the death of Suresh @ Srinu in the accident that was occurred on 19.02.2014, in which the offending tractor and trailer were involved. 4. It is the case of the petitioners that the deceased was the husband of the 1st petitioner and son of petitioner Nos.2 & 3. It was their further case that, on 19.02.2014 the deceased was engaged as coolie to load and unload the sand by respondent 6 No.1/owner of the offending tractor and trailer. After loading the sand in the trailer, the deceased boarded the trailer and when the vehicle reached near Ogidi canal road on Ithampudi-Ogidi, the driver of the tractor was unable to control the vehicle and as a result of which, the trailer turned turtle and fell in a canal, the driver fell under the tractor and died on the spot. The deceased Suresh @ Srinu, who sat on the load of sand fell under the trailer and, he also died on the spot. A case in Crime No.22 of 2014 was registered under Section 304-A IPC. 5. In view of the sudden demise of the deceased, the petitioners filed the above mentioned claim petition seeking to grant compensation of Rs.6,00,000/- together with interest @ 12% per annum. The 1st respondent/owner of the tractor filed counter affidavit stating that the deceased was engaged by him for loading and unloading of sand. The daily wage was fixed at Rs.200/- per day by the 1st respondent. It was further contended that the tractor has valid permit at the time of accident and the tractor and trailer were insured with the 2nd respondent. 6. A separate counter affidavit was filed by the 2nd respondent inter alia contending that the tractor driver had no valid 7 driving license at the time of accident and as the owner of the tractor-cum-trailer allowed the driver without having license, thereby he violated the terms and conditions of the policy. It was further contended that the tractor did not possess any valid permit and fitness certificate at the time of accident. Further, the Insurance policy was not covered the risk of 3rd party. 7. It is further case of the 2nd respondent that the policy does not cover the risk of unauthorized passengers or persons boarded for loading and unloading. It was also further contended that the seating capacity of the tractor is only one and the same is meant for driver of the tractor alone. Therefore, as the deceased was permitted to board the trailer, the 2nd respondent cannot be fastened with the liability of payment of compensation and in view of the same, the Tribunal ought not to have directed the 2nd respondent to deposit the compensation awarded. With the above pleadings, the 2nd respondent prayed to dismiss the claim petition against it. 8. The 1st petitioner was examined as PW-1 and one Smt.B.Vara Lakshmi was examined as PW-2. The petitioners have also marked Ex.A1 to A5. On the other hand, the respondents 8 examined RW-1 to RW-4 and marked Ex.B1 to B3 on their behalf. The Tribunal after conducting thorough enquiry, by order under challenge, partly allowed the claim petition by awarding an amount of Rs.5,74,000/- towards compensation together with interest @ 7.5% per annum, fastening the liability on respondent No.1. The Tribunal further directed the 2nd respondent to deposit the entire compensation amount together with interest within one month from the date of award by reserving liberty to the 2nd respondent to recover the same from respondent No.1. Aggrieved by this portion of the order of the Tribunal, directing the 2nd respondent/Insurance Company to deposit the amount, the present appeal is filed. 9. The petitioners filed cross objections not satisfying with the compensation awarded by the Tribunal. 10. Heard, Smt.A.Jayanthi, learned counsel for appellant/Insurance Company and Sri A. Veera Swamy, learned Counsel for the respondents/claimants/cross objectors. 11. Perused the record. 12. The only ground that falls for consideration of this Court is that, once the Tribunal did not fasten the liability on the 9 Insurance Company, can the Insurance Company be directed to deposit the compensation awarded. 13. The counsel for Insurance Company would further submit that, though the tractor-cum-trailer was insured with the 2nd respondent, the policy does not cover the risk of unauthorized passengers and in such circumstances, the Tribunal ought not to have directed the Insurance Company to deposit the compensation awarded. 14. On the other hand, Sri A.Veera Swamy, learned Counsel appearing for the respondents/claimants, would submit that the deceased cannot be treated as unauthorized or gratuitous passenger inasmuch as he was specifically engaged for the purpose of loading and unloading of sand. He would further submit that even if the deceased was to be treated as unauthorized passenger or gratuitous passenger, the same will not absolve the Insurance Company from depositing the compensation, inasmuch as the tractor and trailer were insured with the 2nd respondent. 15. Apart from the same, he would also submit that while awarding compensation, the Tribunal directed the Insurance Company to deposit the same by reserving liberty to recover from 10 the 1st respondent, owner of the tractor and trailer. He would further submit that there is no illegality in the order passed by the Tribunal, directing the Insurance Company to deposit the compensation amount. 16. Smt.A. Jayanthi, placed reliance on order passed by coordinated bench of this Court in MACMA No.150 of 2019. In this order, a learned Single Judge of this Court having considered Rule 252 of Andhra Pradesh Motor Vehicles Rules, 1989 had held that “permitting the passengers to travel in a goods vehicle is violation of terms of policy, and therefore the Insurance-Company is not liable to pay compensation to the claimants”. She would also place reliance on judgment rendered by this Court in the case of “New India Assurance Company Limited Vs. Thotapalle Dasaratha and others”1, wherein this Court had held that the policy which does not cover the risk of the 3rd party, who was an inmate of the vehicle, the liability cannot be fastened on the Insurance Company. 17. She would also place reliance on a judgment referred by the Hon’ble High Court of Madras in the case of “The Manager, HDFC General Insurance Company Limited Vs. Kannamma & 1 (2015) 3 ACC 23 : (2015) 3 ALT 69 11 others,2 wherein it was held that that Insurance Company cannot be made liable to pay compensation, inasmuch as the seating capacity of the tractor is only one and the same is exclusively meant for the driver of the tractor. A similar proposition was also laid down by the Hon’ble High Court of Madras in the case of "The Divisional Manager, Oriental Insurance Company Limited vs. Kalaiarasi and others3". 18. On the strength of these judgments, the learned counsel for the appellant would submit that the Insurance Company cannot be made liable to pay the compensation and it is only for the owner of the tractor has to pay the compensation. 19. On the other hand, the learning Counsel appearing for the claimants would submit that the Hon’ble Apex Court as well as this Court have consistently held that even in cases where the liability is not fastened on the Insurance Company, the Courts have always directed the Insurance Company to deposit the compensation amount by granting liberty to recover the same from the owner of the vehicle later. He would further submit that having taken into consideration of the facts of the case, though the Tribunal had not fastened the liability on the Insurance Company, it 2 2020 Lawsuit (Mad) 2451 3 2024 LawSuit (Mad) 61 12 was directed to deposit the amount. He would place reliance on the observation of the Tribunal in the case on hand that, the Insurance Company was only directed to deposit the amount, without fastening liability. Apart from the same, he would further submit that since liberty has been granted to the Insurance Company to recover the amount from the owner, the appeal is not maintainable and prays to dismiss the same. 20. In support of his contention, the learned counsel placed reliance on the judgment rendered by coordinated bench of this Court in MACMA No.837 of 2015, wherein this Court after following the judgments of the Hon’ble Apex court in the case of “Singh Ram Vs. Niramala and others”4 had held that though the Insurance Company is not liable to pay compensation, it was directed to deposit the same by reserving liberty to recover the same from the owner of the offending vehicle. 21. As can be seen from the record, it is not in dispute that the deceased was engaged for the purpose of loading and unloading of sand by the owner of the tractor, the same is also admitted by the Insurance Company. In such circumstances, it 4 (2018) 3 SCC 800 : 2018 Law Suit (SC) 191 13 cannot be said that the deceased was either gratuitous passenger or unauthorized passenger. Further, on perusal of the contents of the counter affidavit, it is clear that the wage of the deceased was fixed as Rs.200/- per day for the said purpose. 22. The Tribunal having considered the rival submissions made by the counsel on either side and by taking into consideration of the material placed, it had rightly observed that the liability cannot be fastened on insurance company. Nevertheless, the Tribunal directed the insurance company to deposit the said amount by reserving liberty to recover the amount from the owner. The Courts/Tribunals would normally give such direction to the victims/legal heirs of the deceased so as to enjoy the fruits of the order at the earliest. Further, it is not out of place to mention that whenever earning member of the family is died in an accident, the entire family will be in harness. Therefore, if the victims/legal heirs are directed to proceed against the owner of the offending vehicle for recovery of compensation, the same would be delayed inasmuch as one will certainly adopt dilatory tactics, which will put the claimants to immense hardship. Further, it is not out place to mention that, whenever the Court is dealing with the matters arise out of beneficial legislation, a pragmatic approach 14 needs to be adopted. Keeping all these facts in mind, the Tribunal had rightly directed the Insurance Company to deposit the compensation by reserving liberty to it to recover the same from the owner of the vehicle. 23. It is not out of place to mention that the Hon’ble Apex Court in the case of “V.Renganathan and another Vs. Branch Manager, United India Insurance Company”5, having observed that though the Insurance Company is not liable to pay compensation, still it was directed to deposit the same at the first instance by reserving liberty to recover the amount from the owner of the offending vehicle. 24. No doubt that, this Court is in complete agreement with the judgments relied on by the counsel for appellant, and at the same time, this Court does not find any reason to interfere with the order under challenge in so far as directed the Insurance Company to deposit the amount awarded in view of the judgment rendered by Hon’ble Apex court in V.Renganathan’s case. 25. Following the judgment rendered by the Hon’ble Apex Court in the case of “V.Renganathan and another Vs. Branch 5 (2011) 13 SCC 236 (SC) 5 (2011) 13 SCC 236 (SC) 15 Manager, United India Insurance Company”6, this Court does not find any illegality or infirmity in the order passed by the Tribunal in so far as directing the Insurance Company to deposit the amount awarded towards compensation. Accordingly the MACMA No.781 of 2019 is dismissed. 26. Coming to the cross-objection filed by the appellant, the Tribunal had fixed the income of the deceased at Rs.3,500/- per month and after deductions, it had taken Rs.28,000/- per annum and awarded Rs.5,74,000/- towards compensation. In this connection, the counsel appearing for the claimants would submit that while awarding compensation, the Tribunal did not award amounts towards various conventional heads including future prospects and consortium to the parents of the deceased. A perusal of the compensation awarded by the Tribunal, it is clear that the same is not in consonance with the principles laid down by this High Court in the case of “National Insurance Company Vs. Pranay Sethi and others”7, 7 AIR 2017 SC 5157 16 27. Having regard to the facts and circumstances of the case on hand and taking into consideration of the age of the deceased, the income of the deceased is fixed as Rs.300/- per day and Rs.9,000/- per month. Accordingly, the compensation is computed as under:- S.No. Head Compensation Awarded 1 Net Annual Income Rs.9,000 x 12 = 1,08,000/- 2 Future prospects (at the age of 23) Rs.43,200/- (i.e., 40% of the income) 3 Total Income Rs.1,51,200/- 4 Deductions towards personal expenditure (i.e., 1/3rd) Rs.50,400/- 5 Total loss of dependency Rs.1,00,800/- 6 Multiplier of 18 for (at the age of 23) Rs.18,14,400/- 7 Conventional Heads Loss of consortium Rs.1,20,000/- (3-claimants) = (3 * 40,000) Loss of estate Rs.15,000/- Funeral expenses Rs.15,000/- Total Rs.19,64,400/- 17 28. For the reasons recorded supra, the cross objections are allowed to the extent indicated above. However, the claimants are not entitled to receive interest on the enhanced compensation in view of the order passed in I.A.No.1 of 2024 in Cross Objection No.25 of 2024. Further the Insurance Company is directed to pay the enhanced compensation, within a period of two (02) months from the date of receipt of the copy of this order. ______________________ JUSTICE T.C.D. SEKHAR 12.03.2026 DR 18 174 THE HONOURABLE SRI JUSTICE T.C.D. SEKHAR MACMA No.781 of 2019 & CROSS OBJECTION No.25 of 2024 Date 12.03.2026 U DR