JUDGMENT:

This Appeal is filed by the National Insurance Company Limited against the Judgment dated 19.09.2005 in O.P.No.275 of 2001 on the file of the Court of Motor Accidents Claims Tribunal cum District Judge, Ongole.

2. Heard Puppala Suribabu, learned counsel for the Appellant and Sri Kurra Srinivasulu, learned counsel for the Respondents and perused the record.

3. Shorn off unnecessary facts, suffice it to state that the deceased was a gratuitous passenger, where, on his death on 06.05.2001, his legal representatives claimed compensation of Rs.2,50,000/- against Respondent No.1 with a direction to Respondent No.2, the National Insurance Company Limited, to make good the same in favour of the Claimants and recover from the owner.

4. Factum of neither the death of Sri Jampu Sreenivasa Rao on 06.05.2001, nor his age or that he is a gratuitous passenger is in dispute. The Salary Certificate issued by his employer M/s Sri Raghavendra Plastics, Nandyal showing that the deceased was earning Rs.4,500/- per month (Ex.A.8, Salary Certificate) was not accepted by the Tribunal. The Tribunal relied on the information in Ex.A.15, which is the Ration Card issued in the name of the deceased dated 11.05.1992, wherein it has been shown that he is working as a cooli.

5. Basing on this Ration Card (Ex.A.15) that was issued 9 years prior to his death, the Tribunal deemed the deceased to be a cooli as is recorded in the said Ex.A.15 and assessed his daily income to be Rs.80/- (monthly income aggregated to Rs.2,400/-). After deducting his personal expenses, the Tribunal assessed the net loss of earnings per month as Rs.1,600/-

aggregating to annual loss of earnings of Rs.19,200/-. The annual loss of Rs.19,200/-, as assessed by the Tribunal, was multiplied by using multiplier >18? (as the deceased was aged about 30 years), the compensation payable to the dependants of the deceased was assessed at Rs.3,45,600/-. The Tribunal did not consider the aspect of Future Prospects also.

6. Taking note of the fact that the Claimants of the deceased have claimed compensation of only a sum of Rs.2,50,000/- while the Tribunal?s assessment of compensation being Rs.3,45,600/-, which is a higher amount than what was claimed, by following the precedents laid down by this Court, the Tribunal granted the present amount, which is higher than the claimed amount.

7. By so holding, the Tribunal, in all, awarded Rs.3,65,100/-.

8. This Order is impugned in this Appeal. By an interim order dated 06.03.2006 (16 years ago), this Court had granted stay of the impugned order on the condition that the Appellant – Insurance Company deposits half of the amount awarded by the Tribunal together with costs and interest within six (06) weeks from the date of the said order. This Court had also granted liberty to the Claimants, by application of Section 173 of Motor Vehicles Act, to withdraw the same as per their entitlement and proportionate shares. It cannot, therefore, be disputed that the Appellant i.e., the National Insurance Company had enjoyed the luxury of stay for 16 long years during the pendency of this Appeal before this Court.

9. The matter having stood over for consideration, during the course of the hearing, the Appellant – National Insurance Company Limited has placed its reliance on the Judgment of the Hon?ble Supreme Court in NATIONAL INSURANCE COMPANY LIMITED v. BALJIT KAUR AND OTHERS1 wherein a

1 2004 (2) SCC 1

three Judge Bench of the Hon?ble Supreme Court held that the Insurance Company has no liability to pay the gratuitous passenger.

10. The Tribunal, having noted the ratio in the said Judgment has also cited the following Judgments to hold that, by applying the principle of >Pay and Recover?, the Insurance Company shall first make good the compensation in favour of the Claimants and recover the same from the owner of the vehicle: (1) PRAMOD KUMAR AGRAWAL AND ANOTHER v. MUSHTARI BEGUM (SMT) AND OTHERS2 and (2) ORIENTAL INSURANCE COMPANY LIMITED v. NANJAPPAN AND OTHERS3.

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