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2011 DIGILAW 848 (AP)

New India Assurance Co. Ltd. v. T. Padma

2011-10-10

G.BHAVANI PRASAD

body2011
JUDGMENT :- The appeal is directed against the award in OP No.551 of 2000 on the file of the Motor Accidents Claims Tribunal-cum- V Additional District Judge (Fast Track Court), Anantapur, dated 31.8.2005. 2. Talari Sivanna went by Tractor trailer No.AP02-C-4275 - 4276 on 20.2.2000 at about 7 p.m. and when the vehicle turned turtle near Marrimekalapalli Village due to rash and negligent driving, Sivanna sustained severe injuries and died on 1.4.2000 while undergoing treatment at a private hospital at Bangalore. At the age of 45 years, he was earning Rs.2,000/- per month from tamarind business, which he was entirely contributing to his wife, two minor daughters and mother who claimed a compensation of Rs.2,00,000/- from the owner and insurer of the tractor-trailer. The police, Kambadur registered Crime No.8 of 2000 against the tractor driver. 3. While the owner of the tractor remained ex parte, the insurer denied all the allegations of the claimants and put them to strict proof of the insurance policy and compliance with its terms and conditions. Sivanna was claimed to be working as coolie earning Rs.1,000/- per month and his death due to the injuries suffered in the accident was denied. The vehicle was used for transport of goods not covered by the policy and it was not used for agricultural purpose. Travel of persons in the tractor as passengers was not permitted and violation of the terms and conditions absolves the insurer. 4. The Tribunal framed issues about the manner of the accident and the entitlement of the claimants to compensation and examined PWs.1 and 2 and RW 1 and marked Exs. A 1 to A5 and B1 during the course of enquiry. 5. The Tribunal rendered the impugned award firstly accepting EX.A 1 First Information Report and the eyewitness account of PW2 to conclude that the accident occurred due to the rash and negligent driving of the tractor. The Tribunal referred to the tamarind being plucked from tamarind tope and being transported in the vehicle in which Sivanna was travelling as the owner of the goods as per the claim of the claimants, which was denied by the insurer. The Tribunal noted that RW1 admitted that five hamalies were permitted to travel in the tractor as per the insurance policy and PW2 deposed that he went as a coolie to pluck tamarind. The Tribunal noted that RW1 admitted that five hamalies were permitted to travel in the tractor as per the insurance policy and PW2 deposed that he went as a coolie to pluck tamarind. In the absence of any evidence to show that Sivanna engaged the tractor along with PW2 for transporting tamarind for business purpose, the deceased was also presumed to have plucked tamarind as a coolie on that day, for which purpose he was travelling in the tractor. The Tribunal referred to the precedents relied on by the insurer and distinguished them stating' that the deceased travelled as a coolie only at the time of the accident though there was a load of tamarind in the vehicle and hence, there was no violation of the conditions of the policy. The Tribunal considered the deceased to be aged 35 years as per the inquest and post-mortem reports and taking his income as Rs.1,500/- per month, it assessed the compensation on that basis by applying the multiplier of 17 and taking two-thirds of such income into account leaving the other one-third towards the expenses of the deceased. The Tribunal also awarded Rs.10,000/- towards loss of consortium and Rs.5,000/- towards transport and funeral expenses and the amount of Rs.2,29,000/- so arrived at was restricted to Rs.2,00,000/- claimed by the claimants and interest at 7.5 per cent per annum was awarded by the Tribunal. The Tribunal directed apportionment and disbursement of the compensation among the claimants. 6. The insurer challenged the award in this appeal contending that the liability could not have been fastened to the insurer when the tractor was not being used for agricultural purpose and when there was breach of the terms and conditions of the policy by carrying passengers. The multiplier applied was incorrect and the death of Sivanna was not shown to be due to the injuries caused in the motor accident. Hence, the insurer desired the award to be reversed. 7. Heard Sri T. Ramulu, learned Counsel for the appellant and Sri K. Ram Mohan Chowdary, learned Counsel for the respondents/claimants. The 5th respondent, owner of the vehicle, remained unrepresented before this Court. 8. Hence, the insurer desired the award to be reversed. 7. Heard Sri T. Ramulu, learned Counsel for the appellant and Sri K. Ram Mohan Chowdary, learned Counsel for the respondents/claimants. The 5th respondent, owner of the vehicle, remained unrepresented before this Court. 8. Though a feeble attempt was made in the grounds of appeal to dispute the cause of death of Sivanna, the finding of the Tribunal on the uncontroverted evidence of PW2, corroborated by the earliest version in EX.A1 First Information Report cannot be disturbed in the absence of any strong grounds. The ownership of the vehicle with the I st respondent and its subsisting insurance with the 2nd respondent to the claim being not in dispute, the dependents of Sivanna who are wife, minor daughters and mother are entitled to just and adequate compensation from the owner and insurer jointly and severally, if they are not disabled by any technical grounds taken by the insurer in this appeal. 9. The copy of insurance policy, Ex.B1, shows that the insured paid specific premium for five hamalies towards the insurance for use of the vehicle for agricultural purpose. In fact, the Tribunal referred to the admission of RW1 in this regard and on the evidence before it, the Tribunal did not find the tractor and trailer to have been used for transport of the tamarind for business purpose and had concluded that PW2 and the deceased went as coolies to pluck tamarind from tamarind tope and were returning after the work in the tractor-trailer, which may not be capable of being construed to be totally unconnected with an agricultural purpose. The Tribunal, which had the benefit of observing the witnesses in flesh and blood and noting their demeanour, has placed reliance on the claims of PW2 in this regard and even PW1, the wife of the deceased, was clear that the deceased went as a coolie on that day though he was also doing tamarind business. The Tribunal noted that there was no contradictory material on record against its conclusions and the finding by the Tribunal in this regard need not be disturbed in the absence of any strong grounds. If so, no violation of the terms and conditions of the insurance policy can be presumed by the material on record. 10. The Tribunal noted that there was no contradictory material on record against its conclusions and the finding by the Tribunal in this regard need not be disturbed in the absence of any strong grounds. If so, no violation of the terms and conditions of the insurance policy can be presumed by the material on record. 10. The calculation of the compensation was, in fact, conservative, as the income was assessed at a much lower level than the minimum wages prevalent by that time in respect of unskilled labourers, and as the claim was ultimately restricted, in spite of the entitlement to damages under various heads, only to the amount claimed by the claimants in the claim petition. The award, therefore, need not be interfered with for any plausible reason and the appeal has to fail. 11. Accordingly, the civil miscellaneous appeal is dismissed without costs.