HONOURABLE SRI JUSTICE S.RAVI KUMAR C.M.A.No.4705 of 2003 Dated 24-11-2014 Between:
Bangalore Anjinappa and another.
..Appellants.
And:
B.Ganganna and others.
..Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR C.M.A.No.4705 of 2003 JUDGMENT:
This appeal is against orders dated 15-4-2003 in O.P.No.30 of 2001 on the file of Chairman, Motor Accident Claims Tribunal-cum-Additional District Judge, Hindupur.
Appellants herein are claimants in the above referred O.P.No.30 of 2001.
Brief facts leading to appeal are as follows:
On 17-6-2000, lorry bearing No.CAM 2981 in which the deceased B.R. Laxmaiah was traveling, met with an accident on N.H.4 Road at about 11 P.M., and appellants being parents of the deceased filed the above referred O.P. claiming compensation of Rs.3,00,000/- and the tribunal awarded Rs.1,05,320/- with interest at 9% p.a., against legal representatives of owner i.e., R.3 and R.4 and dismissed claim against second respondent- Insurance company. Now aggrieved by the dismissal of claim against Insurance Company and also for remaining claim of Rs.2,04,680/-, the claimants preferred the present appeal.
Heard both sides.
The main argument of the advocate for appellants is that deceased travelled in the lorry as a owner of goods but the Claims Tribunal treated the deceased as a gratuitous passenger and dismissed the claim against Insurance Company and thereby, committed error and finding of the trial court to that extent has to be set aside.
The other argument of the learned counsel for the appellants is that the multiplier applied by the Tribunal is incorrect and compensation granted is very meager. It is further argued that both claimants are solely dependant on the income of the deceased who was their eldest son and the Tribunal failed to consider this aspect and that there is a valid Insurance Policy as on the date of accident, but the tribunal on erroneous interpretation dismissed the petition against Insurance Company and therefore, order of the tribunal is to be set aside.
On the other hand, advocate for Insurance Company submitted that from the evidence on record, it is clear that the deceased was only a passenger and he is not the owner of the goods and the Tribunal rightly dismissed the application against Insurance Company and even with regard to quantum, Tribunal rightly applied multiplier and decided compensation taking the income of the deceased at Rs.1200/- per month and by also taking the mother’s age, correct multiplier is applied and that there are no grounds to interfere with the findings of the tribunal.
Now the point that would arise for my consideration in this appeal is whether the order of Tribunal is legal, correct and proper?
POINT:
There is no dispute with regard to accident that occurred on 17-6-2000. There is also no dispute that accident vehicle was insured with the second respondent- Insurance Company. The main point agitated by claimants is that deceased travelled in the accident vehicle as owner of goods and therefore, Insurance Company is liable to pay compensation.
On behalf of the claimants, three witnesses are examined. P.W.1 is the second claimant and mother of the deceased, P.W.2 is the brother of P.W.1 who also traveled along with the deceased in the crime vehicle and P.W.3 is the clerk of Nanjundeswara Road Lines, Bangalore.
Learned counsel for appellants submitted that according to evidence of P.W.2, both deceased and P.W.2 purchased articles for their business purpose at Bangalore and they engaged a lorry to transport their articles in which lorry already, vegetables were loaded in half portion of the lorry and that they have agreed to pay Rs.2,000/- for their articles and they boarded lorry with goods. He further submitted that evidence of P.W.3, the clerk of the transport company would reveal that as per their records, hire of lorry was also paid by deceased and therefore, the deceased traveled in the lorry as owner of the goods and the findings of the tribunal are incorrect.
Though it is argued that deceased engaged lorry for transporting his goods and traveled in the lorry as a owner of the goods, there is no such pleading in the claim petition.
There is no whisper in the claim petition about hiring lorry bearing No.CAM 2981 for transporting goods of deceased and P.W.2 purchased at Bangalore.
On the other hand, F.I.R and other investigation documents disclose that the deceased and P.W.2 were traveling as passengers in the accident vehicle.
Advocate for appellants mainly argued that evidence of P.W.3 would disclose that deceased engaged lorry for transporting his goods, Ex.A.3 is entry in the ledger of the transport company, would prove the same. Advocate for Insurance Company referring to Ex.A.3 submitted that name of B.R. Laxmaiah was an insertion in the said entry and it was not the original. He further argued according to P.W.2, they have paid Rs.2,000/- for their goods but according to his evidence, the lorry was already loaded with vegetables and maize bags etc., if that is so, the total fare reflected in the ledger is Rs.2,780/-, which means, for the major load of vegetables and maize, only Rs.780/- was paid and whereas for a small load of plastic items, a sum of Rs.2,000/- was paid which is quite unnatural and unbelievable. In fact, this point was raised before the tribunal and the learned Chairman on evaluation of evidence of P.W.3 and Ex.A.7 discarded the contention of claimants that the deceased traveled in the lorry as owner of goods. No doubt, P.W.2 and deceased might have purchased some articles at Bangalore for their business purpose but boarding the lorry as passengers with luggage is quite different from boarding the lorry as owner of goods that was engaged for transporting goods. Here from the evidence on record, claimants have failed to prove that the deceased has engaged lorry and that he traveled in the capacity of owner of the goods in the said vehicle. Learned trial judge has elaborated discussed every aspect of the matter and I do not find any wrong appreciation of evidence and that there are no incorrect findings in the order of the Accident Claims Tribunal.
Learned advocate for appellants submitted that the tribunal ought to have directed Insurance Company to pay the compensation and later recover from the owner. He further submitted that when there is subsisting insurance policy, in case of gratuitous passengers, the Insurance company has to pay the compensation first and then recover the same from the owner and to support his argument, he relied on ruling of this court in UNITED INDIA INSURANCE COMPANY LTD., REPRESENTED BY BRANCH MANAGER, VISAKAPATNAM v.
[1]
DEDISETTI RAMANAMMA AND OTHERS ( ) , NEW
INDIA ASSURANCE Co. Ltd. v. SUMAN LATA AND
[2]
OTHERS ( ) and JANKE MALLAREDDY AND OTHERS
[3]
v. SHAIK ABDUL KHADER AND ANOTHER ( ).
In all these decisions, Insurance Company was directed to pay first and recover from the owner basing on the decisions of Honourable Supreme Court. But the principle of pay and recover has to be applied only in certain situations but not in all cases. Here as already observed above, there is no specific pleading in the claim petition about engaging lorry by the deceased and P.W.2 and the evidence on record would disclose that this version is only a created one for the purpose of claiming compensation. When Ex.A.7 entry would show that the name of deceased is inserted in the ledger of the transport company, this case cannot be considered to apply pay and recover rule. Therefore, considering these aspects, pay and recover principle cannot be applied to this case and therefore, the arguments of the learned advocate for appellants cannot be sustained.
Though in the appeal, it is contended that the multiplier is not properly applied, nothing is argued on this aspect and no material is placed to show that tribunal has applied wrong multiplier.
On a scrutiny of the material, I do not find any merits in the appeal.
For these reasons, this Civil Miscellaneous Appeal is dismissed as devoid of merits.
As a sequel to the disposal of this appeal, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 24-11-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs C.M.A.No.4705 of 2003 Dated 24-11-2014
[1] 2013 (2) An. W.R. 654 (A.P)
[2] 2013 (2), An.W.R.660 (P&H)
[3] 2013 (1) An. W.R. 694 (A.P.)