K TRISULA DEVI Vs. N NAGESWARA RAO

JUDGEMENT

(1.) THIS CMA is filed under section 110d of the Motor Vehicles Act against the order and judgment of the Motor Accidents Claims Tribunal (District Judge), Khammam. The first appellant is the wife of the deceased. The second and the third appellants are the children of the deceased, being minors, represented by the first appellant. The first respondent in this appeal is the driver. The second respondent is the owner of the jeep bearing No. ADY 411 (hereinafter called "the insured" ). The third respondent is the Oriental Fire and General Insurance Co. Ltd. , Hyderabad (hereinafter called "the insurer" ). On March 20, 1981, at 11. 30 a. m. , the first appellant's husband, one Kaja Krishna Murthy aged about 30 years, working as Revenue Inspector in the A. P. State Irrigation Development Corporation at Bhadrachalam and drawing a salary of Rs. 600 per month, met with an accident while travelling in the above jeep driven by the first respondent and owned by the second respondent. In that accident, the husband of the first appellant died. The three appellants had, therefore, filed a claim before the Motor Accidents Claims Tribunal (District Judge), Khammam, claiming Rs. 30,000 for the first appellant towards her maintenance, Rs. 30,000 for the maintenance and educational expenses of the second appellant and Rs. 35,000 for the maintenance and marriage expenses of the third appellant. They also claimed special damages of Rs. 5,000. In all, the appellants had claimed a total compensation of Rs. 1,00,000.

(2.) THE first respondent, the driver, remained ex parte. The second respondent only contested the claim of the appellants. The second respondent pleaded that the heirs of the deceased had received substantial amounts from the Government towards F. B. R. and gratuity and they were also entitled to get a sum of Rs. 20,000 under the LIC policy and that, therefore, they were not entitled to claim the above sum. The insurer, the third respondent, denied that the deceased died of the accidental pleaded that the claim of the appellants for compensation of Rs. 1,00,000 was speculative. They also stated that the records at their office had been verified and they did not find that the vehicle, ADY 411, was insured with them. In a fit of irresponsibility, they also denied that the deceased was hale and healthy and was drawing a sum of Rs. 600 per month. Although the insurance company reserved the right to file an additional counter-affidavit, they never filed any additional counter- affidavit. The Tribunal had raised two issues : The first issue is, whether the deceased died due to the rash and negligent driving of the jeep bearing No. ADY 411 by the first respondent and whether the petitioners were entitled to compensation, if any, and if so, against whom? In support of the claim of the claimants, the deceased's wife deposed as P. W. 1 marking exhibit A-1 to A-4. Owner of the jeep, ADY 411, never went into the box. On behalf of the insurance company, its administrative officer was examined as R. W. 1 and exhibit B-1 and B-2 were marked. It may be mentioned that exhibit B-1 was the insurance policy dated March 23, 1981. Under that policy, which was valid from March 17, 1981, to March 16, 1982, the third respondent had indemnified (1) the second respondent against loss or damage to the above mentioned jeep, and (2) also against all sums the insured becomes legally liable to pay in respect of the death of or bodily injury to any person including occupants carried in the motor car abovementioned. According to the terms of the policy, the company will indemnify the insured in the event of the accident caused by or arising out of the use of the motor car against all sums including the claimant's costs and expenses which the insured shall become legally liable to pay in respect of the death of or bodily injury to any person including the occupants carried in the motor car, provided that such occupants are not carried for hire or reward but except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939, the company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured (emphasis * supplied ).

(3.) EXHIBIT B-2 is a note (No. 1 M. T. 5) attaching to and forming part of the above policy. The opening lines of that note reads as follows :