KATIPALLI YESAMMA Vs. D V SUBBAREDDY

JUDGEMENT

(1.) Appellants, who are the wife and parents of Peda Akkaiah (the deceased) who died due to an accident that occurred on 13.4.1996, when he was traveling in the lorry bearing No. ADF 702 belonging to the first respondent and insured with the second respondent, filed a claim petition seeking compensation of Rs. 1,50,000/-, from the respondents, on the ground that the accident took place due to the rash and negligent driving of the driver of the lorry. First respondent filed a counter, putting the appellants to proof of the allegations in the petition and contending that since the lorry was insured with the second respondent, the compensation has payable to be paid by the second resondent only. Second respondent filed a counter putting the appellants to proof of the allegations in the petition.In support of their case, appellants examined two witnesses as P.Ws. 1 and 2 including the first appellant as P.W.1 and marked Exhibits A1 to A5. First respondent did not adduce any evidence either oral or documentary. Second respondent examined one witness as R.W.1 and marked Exs. B1 and B2.The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the lorry and awarded Rs.50,000/- as compensation to the appellants on the assumption that the claim is under Section 140 of the Motor Vehicles Act, 1988 (for short 'the Act'). Dissatisfied with the compensation awarded to them and questioning the assumption of the Tribunal that the claim is under Section 140 of the Act, the claimants preferred this appeal.

(2.) The main contention of the learned counsel for the appellants is that, since the claim petition is filed under Section 166 of the Act, the Tribunal was in error in assuming that the claim is under Section 140 of the Act and restricting the compensation to Rs.50,000/- and it ought to have granted the entire amount claimed by the appellants, keeping in view the age and income of the deceased. There is no representation on behalf of the respondents though notices of the appeal were served on them.

(3.) Since the respondents did not prefer any appeal or cross objections, questioning the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the lorry, and since the Tribunal committed an error in observing in paragraph-I of its award that the claim is under Section 140 of the Act, when in fact the claim is made under Section 166 of the Act, the point for consideration in the appeal is to what compensation are the appellants entitled to and from whom?