THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA

COMMON JUDGMENT:

M.A.C.M.A.No.410 of 2020 is filed by the New India Assurance Company Limited and Cross Objection No.40 of 2021 is filed by the Claimants being aggrieved and unsatisfied against the Award and decree passed by the Motor Accidents Claims Tribunal-Cum- Principal District Judge, Mahabubnagar, (hereinafter referred to ‘learned Tribunal’) in M.V.O.P.No.87 of 2017, dated 04.10.2019.

2. For the sake of convenience, the parties will be hereinafter referred to as they are arrayed before the learned Tribunal.

3. Heard Sri K.Venkatesh Gupta, learned counsel for the Claimants and Sri Kota Sameer Kumar, learned counsel for respondent Insurance Company and Sri Repakula Nageswar Rao for Respondent No. 2. Perused the entire material on record.

4. The brief facts of the case are that the claimants filed claim petition under section 166 of the Motor Vehicles Act, 1988 (in short referred to as the M.V.Act) seeking compensation of Rs. 15,00,000/- for the death of the husband of claimant No.1 and father of claimants No. 2 and 3 for the death caused in the accident. On 13.07.2012, the deceased who was working as tipper driver on tipper bearing registration No.AP-04-Y-82100 under the employment of respondent No.1 and when the Raghu (herein after referred as deceased) went to Jurala Gence and was proceeding towards the working place to dump the loaded material and while discharging his duties, the tipper turned turtle from a height of 100 feet, as a result of which, the material and boulders fell on the body of the deceased and he sustained head injury due to which he died on the spot. 5. The Police have registered the case against the driver of the said crime vehicle vide Crime No.49 of 2012 under Sections 304-A and 337 of IPC. Since the deceased himself the driver as such, the action was abated and the crime was closed.

6. The case of the claimants is that the deceased died due to the accident and the said vehicle was duly insured with the Insurance Company/respondent No.2 and the respondent No.1 being the owner of the vehicle, and the Insurance policy was in force as on the date of the accident. Respondent No. 1 being the owner and Respondent No. 2 being the insurer are liable to pay the compensation claimed by the claimants. As such, claimants have claimed compensation of Rs.15,00,000/- from the respondents for the death of the deceased.

7. The claimants contended that the deceased was hale and healthy and was earning Rs.15,000/- per month beside he used to get Rs.150/- per day as bhatta by working as a driver on the tipper lorry and due to the death of the deceased in the accident, the claimants have sustained loss of dependency, as they were depended on the income of the deceased. At the time of the accident, 8. Before the learned Tribunal, the Respondent No.1 filed counter- affidavit denying the averments made in the petition and further contended that the said accident occurred only due to the negligence on the part of the deceased himself and further denied as to the age, occupation, income of the deceased and further contended that the said vehicle being duly insured with the Respondent No.2 and the policy being subsisting which covers the risk of the driver the accidents during the course of employment, if at all the claimants are entitled to any compensation it is the respondent No.2 who is liable to pay the compensation and the respondent No.1 is not liable to pay the compensation and further averred that claimants have already received Rs.5,00,000/- from respondent No.1 with an understanding that the claimants will return the said amount of Rs.5,00,000/- in the event of receipt of the compensation from respondent No.2 insurance company.

9. Respondent No.2-Insurance Company filed a counter-affidavit denying the averments made in the petition and further contended that though the said vehicle was insured with respondent No.2, but it is subject to the terms and the conditions and that