Y. Ramaiah Setty vs Lakshmamma and Others

G. Radhakrishna Rao, J.—C.M.A. Nos. 598 of 1988 and 599 of 1988 are filed by the owner of the lorry MYK 5598 against the awards passed in O.P.No. 409 of 1986 (under Section 110-A of the Motor Vehicles Act) and O.P. No. 410 of 1986 (under Section 92-A of the said Act), which were filed by the legal representatives i.e., wife and children of one K.N. Appireddy, for the loss of life of the said K.N. Appireddy.

C.M.A No. 847 of 1988 is filed by the insurance company against the award passed in O.P.No. 409 of 1986.

C.M.A. Nos. 559 of 1988 and 597 of 1988 are filed by the very same owner of the lorry MYK 5598 against the awards passed in O.P.Nos. 359 of 1986 (under Section 110-A of the Act) and 360 of 1986 (under Section 92-A of the Act), which were filed by the wife and children of one Chakkarlappa for the loss of life of the said Chakkarlappa.

Respondents 1 to 5 in C.M.A. No. 559 of 1988 (i.e., claimants in O.P.No. 359 of 1986) filed cross-objections against the award passed by the lower tribunal in O.P.No. 359 of 1986, praying for enhancement of the compensation.

The deceased persons viz., K.N. Appireddy and Chakkarlappa died in the lorry accident which took place on 9-3-1986 at 4-00 a.m. while they were travelling in the crime vehicle i.e., lorry bearing No. MYK 5598. The facts leading to the filing of the O.Ps. are as follows:-

On 9-3-1986 at about 4-00 a.m. the lorry M.Y.K. 5598 belonging to Y. Ramaiah Setty was coming along the Madras - Bangalore Road, with iron plates loaded at Madras, and when the vehicle came near Iruvaram Harijanwada near Chittoor, the driver of the vehicle drove the same in rash and negligent manner, as a result of which the lorry went beyond the road margin on the left side and fell into a ditch and that due to the impact, the two deceased persons Appireddy and Chakkarlappa died.

The lower tribunal, on a consideration of the entire material placed on record, found that the accident occurred due to the rash and negligent driving of the lorry driver. It further found that the deceased in O.P.Nos. 409 and 410 of 1986 viz., K.N. Appireddy was travelling in the lorry in the capacity of owner of the goods that were being transported in the lorry by the time of accident, and as such, the driver, the owner and the insurance company are jointly and severally liable to pay the compensation to the claimants in those two O.Ps. A sum of Rs. 37,000/- in O.P.No. 409 of 1986 and a sum of Rs. 15,000/- in O.P. No. 410 of 1986 had been granted by the lower tribunal towards compensation.

As far as O.P.Nos. 359 and 360 of 1986 are concerned, the lower Tribunal held that the deceased viz., Chakkarlappa was travelling in the crime vehicle as gratuitous passenger with the permission of the driver and cleaner of the lorry, and as such, the insurance company is not liable to pay compensation as the policy does not cover such risk. It granted a sum of Rs. 70,000/- in O.P. No. 359 of 1986 and a sum of Rs. 15,000/- in O.P. No. 360 of 1986 towards compensation. Aggrieved by the above said common award, the owner of the lorry filed C.M.As. Nos. 598, 599; 559 and 597 of 1988, and the insurance company filed C.M.A. No. 847 of 1988.

It is the contention of the appellant in C.M.A.No. 847 of 1988, viz., the insurance company, that the lower tribunal erred in finding that the deceased Appireddy was travelling in the crime vehicle in the capacity of owner of the goods; that as the vehicle was returning towards Karnataka State after unloading the goods belonging to the said Appireddy at Madras, the deceased cannot be said to be the owner of the goods in return journey also, and hence he can be treated as gratuitous passenger only. It came on record, through the evidence of P.W.4, that the deceased went along with the lorry, which was loaded with potatoes, as owner. The potatoes were unloaded at Madras, and while the lorry was returning to Karnataka State with another load i.e., iron plates, the accident occurred, in which the deceased Appireddy died. The evidence adduced thus clearly established that the deceased, soon after the potatoes were unloaded at Madras, was returning to his home town in Karnataka State, it is to be noted that as and when the goods belonging to the deceased were unloaded at Madras, the deceased will no longer be called as ''owner of the goods''. As the lorry was immediately returning to his home town, the deceased might have chosen the same lorry for his return instead of coming by a passenger bus or train, and requested the lorry driver, which was obliged by him. In such circumstances, the deceased can be called only as gratuitous passenger and not owner of the goods. Thus, the findings of the lower tribunal that the deceased was travelling in the lorry as owner of the goods are unsustainable.

The lower tribunal, having come to the above conclusion that the deceased was owner of goods, fixed equal liability on the insurance company along with the driver and owner of the lorry. But in view of the finding in this appeal that the deceased was travelling only as a gratuitous passenger in the lorry, the liability of the insurance company has to be limited as per the provisions of Section 92-A of the Motor Vehicles Act. Under the above provisions, the liability of the insurance company is unlimited upto Rs. 15,000/- in case of death of a gratuitous passenger. For these reasons, I hold that the insurance company is liable to pay only Rs. 15,000/-.

The contention of the lorry owner i.e., appellant in C.M.A. Nos. 598 and 599 of 1988, is that the owner cannot be made liable to pay compensation in view of the fact that the driver of the lorry had allowed the deceased to travel in the same lorry on his own account, and therefore, the said act of the driver does not fall within the purview of ''in the course of employment'', and therefore the owner is not liable. But, the owner is vicariously liable for the acts done by his servant, even with or without his consent and permission. Thus, the above contentions of the owner of the vehicle, are negatived.

The very same contention is raised in C.M.As. Nos. 559 and 597 of 1988 by the owner. In view of my finding on this aspect in the previous para, these C.M.As. are also liable to be dismissed. The lower tribunal, placing reliance on Ex.B-1 insurance policy, held that the insurance company is not liable to pay compensation as the insurance company did not indemnify the insured regarding the death of gratuitous passengers. The finding of the lower tribunal on this aspect is perfectly justified.

The claimants in O.P.No. 359 of 1986 i.e., respondents in C.M.A.No. 559 of 1988 filed Cross-Objections against the award passed therein, for enhancement of compensation. It is contended by the cross-objectors that the lower tribunal has not properly appreciated the evidence on record with regard to the income potentialities of the deceased. The lower tribunal granted a sum of Rs. 70,000/- to the claimants for the death of Chakkarlappa. It is seen in the evidence that Chakkarlappa was working as Lineman in Karnataka Electricity Board, and was earning a net salary of Rs. 902-30 per month by the date of accident. The lower tribunal assessed the contribution of the deceased towards his family at Rs. 450/- per month, and granted a sum of Rs. 70,000/- after duly taking into account the earning capacity, the age of the deceased and the status of the family members of the deceased. It applied the multiplier ''15''. While granting compensation, the lower tribunal granted Rs. 4,000/- under the head of consortium. But, in view of the very young age of the first petitioner, I feel it just and proper to grant a further sum of Rs. 5,000/- under the above head. Therefore, the petitioners are entitled to a total amount of Rs. 75,000/- towards compensation.

In the result, C.M.A. No. 847 of 1988 is allowed as indicated above; and the cross-objections filed in C.M.A.No. 559 of 1988 are allowed in part, and an award is passed for a sum of Rs. 75,000/- directing the respondents 1 and 2 in O.P.No. 359 of 1986 to pay the said amount jointly and severally to the petitioners. The petitioners are also entitled to interest at 12% per annum on the enhanced amount from the date of appeal till the date of payment.

C.M.A. Nos. 598 of 1988, 599 of 1988, 559 of 1988 and 597 of 1988 are dismissed accordingly. No costs.