The principle of "pay and recovery" can be applied to gratuitous passengers in motor vehicle accident cases, where the claimant is not in a position to realize the difference from the owner of the vehicle.

JUDGMENT:

This appeal is preferred by the 2nd respondent/Insurance company challenging the award dated 19.11.2009 passed in M.V.O.P.No.318 of 2007 on the file of Motor Accidents Claims Tribunal-cum-V Addl. District Judge (F.T.C.), Guntur, wherein the Tribunal while partly allowing the claim petition, awarded compensation of Rs.3,34,000/- with interest @ 6% p.a., from the date of petition till the date of realization, to the petitioners for the death of the deceased Vajja Krishna Murthy.

2. For the sake of convenience, the parties are arrayed as referred to in the trial Court.

3. As seen from the record, originally, the petitioners filed an application under Sections 163-A, 166 and 140 of Motor Vehicles Act, 1988 (for brevity “the Act”) claiming compensation of Rs.2,50,000/- with interest and costs on account of the death of the deceased in a motor accident occurred on 05.12.2006 at about 10.30 a.m., near Hyma Dairy, Karampudi road, Vinukonda while the deceased was going in a goods auto, under the jurisdiction of Vinukonda Police Station.

4. The facts of the case, in brief, are that the deceased was working as loading and unloading coolie and used to earn Rs.3,000/- p.m., and he was aged 49 years at the time of death. On 05.12.2006 at about 10.30 a.m., while the deceased was going in an auto rickshaw (goods carrier) bearing registration No.AP 26U 3680 as loading and unloading coolie along with the load of empty wooden boxes from Vinukonda to Kondandagari Slates Factory situated at Karampudi, the driver of the auto rickshaw drove the same in a rash and negligent manner with high speed, as a result of which it turned turtle and the deceased sustained severe head injury. Initially, he was admitted in Government Hospital, Vinukonda, where he was given first aid and later he was referred to Government General Hospital, Guntur, where he died on the same day while undergoing treatment. The accident was reported to Vinukonda police, who registered F.I.R., in Cr.No.291 of 2006 u/s 304-A of IPC. Due to the death of the deceased, the petitioners lost their bread winner. Hence, the respondents are vicariously liable for the negligent act of the driver and they are liable to pay the amount of compensation to the petitioners.

5. Before the Tribunal, though the 1st respondent/owner made his appearance and filed written statement through his counsel, contending that there was no negligence on the part of the driver of the offending vehicle, the driver was having valid driving licence, he is not liable to pay compensation as the insurance policy was in force on the date of accident, but he did not partake in the proceedings and failed to contest the matter.

6. The 3rd respondent/policy holder remained exparte.

7. The appellant, who is the 2nd respondent in the claim petition, filed written statement resisting while traversing the material averments with regard to proof of age, avocation, monthly earnings of the deceased, manner of accident, rash and negligence on the part of the driver of the crime auto and liability to pay compensation and contended that the driver of the auto rickshaw (goods carrier) was not having valid and effective driving licence, the deceased was travelling in the goods auto as an unauthorised passenger and thus 1st respondent violated the terms and conditions of the policy, hence the 1st respondent alone is liable to pay compensation.

8. On the strength of the pleadings of both parties, the Tribunal framed the following issues:

1. Whether the deceased died due to rash and negligent driving of the auto rickshaw bearing No.AP 26U 3680 by its driver?

2. What is the just amount of compensation that the petitioners can be granted?

3. To what relief?

9. To substantiate their claim, the petitioners examined P.W.1 and got marked Exs.A1 to A5. On behalf of the 2nd respondent, R.W.1 was examined and Exs.B1 and B2 were marked.

10. The Tribunal, taking into consideration the evidence of P.W.1 and Exs.A1 to A5 coupled with the evidence of R.W.1