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2004 DIGILAW 618 (AP)

T. Hanumantha Rao v. Motepalli Venkataratnam

2004-06-29

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) APPELLANTS, who are the parents of Thota Satish (the deceased) aged about 12 years, filed a claim petition seeking compensation of Rs. 1,00,000. 00 from the respondents who are the driver, owner and insurer, respectively, of the lorry bearing no. AP-16-U-8239, alleging that when they and their three children including the deceased were standing at Hanuman junction, first respondent (driver of the offending lorry) engaged them to unload the goods being transported in the lorry at anakapalli and so they boarded the lorry as coolies to unload the goods being transported in the lorry and on the way to Anakapalli the deceased, due to the rash and negligent driving of the first respondent, was thrown out of the body of the lorry and died and so they are entitled to the compensation claimed. Respondents 1 and 2 chose to remain ex pane. Third respondent filed a counter inter alia contending that it is not liable to pay any compensation to the appellant because appellants and the deceased were travelling as passengers in a goods vehicle. In support of the case of appellants, first appellant was examined as P. W. I and exs. A. 1 to A. 3 were marked. On behalf of the third respondent, one witness was examined as R. W. 1 and Exs. B. l and B. 2 were marked. The Tribunal after having held that the accident occurred due to the rash and negligent driving of the lorry by the first respondent held that appellants are entitled to Rs. 62,000. 00 from Respondents 1 and 2 only and exonerated the third respondent from liability because the deceased was travelling as passenger but not as an employee or the owner of the goods being transported in the offending vehicle. Dissatisfied with the compensation awarded to them and aggrieved by the Tribunal exonerating the third respondent from liability, claimants preferred this appeal. ( 2 ) THE point for consideration is to what compensation are the appellants entitled to and against whom? ( 3 ) THE contention of the learned counsel for the appellants is that since the deceased and the appellants were travelling as coolies in the lorry, they are covered by ex. B. l policy and, so, the Tribunal was error in not fastening the liability against third respondent also. ( 3 ) THE contention of the learned counsel for the appellants is that since the deceased and the appellants were travelling as coolies in the lorry, they are covered by ex. B. l policy and, so, the Tribunal was error in not fastening the liability against third respondent also. He contends that since the deceased was an earning member, the tribunal ought to have granted the entire compensation sought by them to the appellants. He relying on National Insurance co. , Ltd. v. Baljit Kaur and others, 2004 (1) ald 98 (SC) = 2004 ACJ 428, contends that in any event third respondent can pay the compensation payable to the appellants and recover the same from second respondent, the owner of the lorry. The contention of the learned Counsel for third respondent is that since the deceased was aged 12 years and since the F. I. R. and the charge-sheet show that the appellants boarded the lorry along with the deceased and others in the midway, the finding of the tribunal that they were passengers in the lorry cannot be said to be erroneous and so there are no grounds to interfere with the award of the Tribunal. ( 4 ) EX. A. L, the FIR issued in connection with the accident, shows that it was registered on the report given by the first appellant alleging that when he, his wife (second appellant) and their three sons (including the deceased) boarded a lorry bearing No. AP-16-U-8239 and were proceeding to Anakapalli, the deceased, who was travelling on the load of the lorry, was thrown out of the lorry and was run over by the rear wheels of the lorry, due to the rash and negligent driving of the first respondent. Those averments in ex. A. 1 belie the contention of the appellants that they and their three children (including the deceased) were travelling in the offending lorry, as coolies. This apart, even according to the appellants, the deceased was about 12 years of age. There is no evidence on record relating to the ages of the other two children of the appellants. Hanuman Junction is far away from anakapalli. This apart, even according to the appellants, the deceased was about 12 years of age. There is no evidence on record relating to the ages of the other two children of the appellants. Hanuman Junction is far away from anakapalli. So, the contention of the appellants that first respondent asked all of them to travel all the way to Anakapalli from Hanuman Junction just to unload the goods being transported therein at anakapalli, cannot be true, since it is not the case of appellants that no unloading coolies would be available at Anakapalli or that they only are the experts in unloading goods from a lorry and that their expertise was recognized by the first respondent by looking at them and their children when they were waiting to go to Anakapalli. ( 5 ) EVEN assuming that first respondent asked the appellants and the deceased and their two other children to board the lorry to unload the goods being transported therein at Anakapalli, since it is not the second respondent (i. e. , the insured) that employed them, but it is the first respondent the driver that employed them, they would not be "employees of a person insured by the policy" falling in proviso (i) to Section 147 (1) of the Motor Vehicles Act, 1988, and so third respondent cannot be made liable. ( 6 ) FIRST respondent permitting the deceased to travel on the load being transported in the offending lorry is against rule 36 (viii) of A. P. Motor Vehicles Rules, 1989. So, the Tribunal holding that the appellants were travelling in the lorry as passengers, but not as coolies and so third respondent is not liable to pay the compensation payable to them needs no interference. ( 7 ) SINCE the deceased was aged 12 years the age of the appellants is relevant for fixing the compensation payable. So, the Tribunal holding that the appellants were travelling in the lorry as passengers, but not as coolies and so third respondent is not liable to pay the compensation payable to them needs no interference. ( 7 ) SINCE the deceased was aged 12 years the age of the appellants is relevant for fixing the compensation payable. In a. P. S. R. T. C. v. G. Ramanaiah, 1987 (2) ALT 526 , it is held that "in case of death of children of the age of the deceased, his parents can claim the present value of the future contributions which the deceased could have made to them and that the dependency can be estimated by computing the actual contribution which the child would have made from the date of his probable earnings and that the question as to when the child would have reached such an earning capacity and what he should have contributed would have to be estimated. Keeping in view the ratio in the above decision and in the facts and circumstances of the case, Rs. 62,000. 00 awarded by the Tribunal to the appellants appear to be just and reasonable and so I find not grounds to enhance the compensation payable to the appellants. The point is answered accordingly. ( 8 ) BALJIT Kaur s case (supra) relied on by the learned Counsel for appellants is of no help to the appellants because what the apex Court held is that case is in the awards already passed against the insurer, the insurer can pay the amounts and recover the amounts from the owners of the offending vehicles. That decision does not empower the appellate Court, when the Tribunal exonerated the insurer from liability in case a passenger in a goods vehicle, to interfere and pass an award against the insurer also and direct it to recover the amount paid by it from the owner. It only saved the awards already passed against the insurer and empowered the insurer to recover the amounts paid by them from the owner of the offending vehicles. In this case, since the Tribunal exonerated the third respondent from liability there is no scope for this court making the third respondent liable by invoking Baljit Kaur s case (supra ). ( 9 ) IN view of my finding on the point for consideration, the appeal is dismissed. No costs.