The court upheld the Tribunal's decision to award compensation only under 'no fault liability' after determining that the deceased's negligence, including driving under the influence, was the primary cause of the accident.

JUDGMENT :

1. This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and the decree, dated 25.04.2003, in M.V.O.P.No.03 of 2003 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-III Additional District Judge, Kurnool at Nandyal.

2. The appellants are the claimants and the respondents are the respondents before the Tribunal.

3. Since the claim against the respondents Nos.2, 4 and 5 was dismissed before the Tribunal, the respondents Nos.4 and 5 are shown as not necessary parties to this appeal, however the respondent No.2 is still shown as party to the appeal:

a. Notices sent to the respondents Nos.1 and 2 were returned unserved, though they were addressed to the address given before the Tribunal. Hence, it is treated as sufficient service of notice. Moreover, further notice is dispensed with as per proviso to Order XLI, Rule 14(1) of C.P.C. as applicable to the State of Andhra Pradesh, as they remained ex parte before the Tribunal.

4. The case of the claimants, is briefly, as follows:

a. The respondent No.1 is the owner, the respondent No.2 is the driver and the respondent No.3 is the insurer of the lorry bearing No.APD 6498. The respondent No.4 is the insurer and the respondent No.5 is the owner of moped bearing No.AP 21 C 8835.

b. On 17.05.1988, at about 12.30 AM, T.George who is husband of the claimant No.1 and father of the claimant No.2 while going on a moped bearing No.AP 21 C 8835, hit the rear side of the lorry bearing No.APD 6498 which was negligently parked in the middle of the road without keeping any warning or lights on National Highway-18 near Sugali Metta Village. As a result, he sustained fatal injuries and died on the spot. The deceased was an employee in Panyam Cement Company and drawing salary of Rs.6,572/- per month. He was aged about 50 years. Therefore, the claimants sought compensation of Rs.5,00,000/-.

5. The respondents Nos.1, 2 and 5 remained ex parte before the Tribunal.

6. The respondent No.3 i.e., the insurer of the lorry filed counter resisting the claim stating that the lorry was taking a load of paddy and that a Jeep bearing No.AP 21 T 2947 was stationed on the road for want of diesel; that the respondent No.2 along with cleaner of the lorry, was engaged in taking out diesel from the lorry; that while so, the deceased himself negligently drove his moped in a drunken condition and was unable to control himself and hit the stationed lorry on its rear side and therefore, he died on his own negligence and that the amount of compensation claimed is excessive.

7. The respondent No.4 filed a counter contending that there was no negligence of the driver of the lorry in causing the death and that the deceased himself was negligent in driving the moped in a drunken condition and that the deceased is not a third party to make any claim against the respondent No.4 for negligence of the deceased and that the claim is excessive.

8. The claimant No.1 was examined as P.W.1 and Ex.A1 to A5 were marked on behalf of the claimants. On behalf of the respondents R.W.1 to R.W.3 were examined and Ex.B1 to B12 were marked.

9. K.Satya Raju, cleaner of the lorry was examined as P.W.2. His evidence is significant on the question of negligence. He stated that parking lights of the lorry were not on and that both the jeep and the lorry had blocked the road and therefore the deceased coming on the moped dashed against the lorry from behind and died:

b. After discussing facts of the case, the Tribunal opined that P.W.2 could not withstand the test of cross-examination and that he had come