C. Y. SOMAYAJULU, J.

( 1 ) APPELLANTS who are the legal representatives of D. Rosaiah (Deceased), who died in an accident that occurred due to the rash and negligent driving of the driver of the lorry belonging to the 1st respondent and insured with the 2nd respondent, filed a claim petition seeking compensation of Rs. 1,00,000/- from the respondents, and examined two witnesses on their behalf as P. Ws. l and 2 and marked exs. A1 to A3. First respondent who filed a counter inter alia contending that since his lorry was insured with the 2nd respondent, it is the second respondent that is liable to pay the compensation payable to the claimants, examined one witness as RW1 and marked Ex. Xl on his behalf. Second respondent, who filed a counter, inter alia, contending that since the deceased was travelling as a passenger in a goods vehicle, it is not liable to pay the compensation payable to the claimants, examined one witness as RW2 and marked Ex. B2 on its behalf. The Tribunal having held that the accident occurred due to the rash and negligent driving of the lorry, awarded rs. 1,00,000/- as compensation against the 1st respondent only, and exonerated the 2nd respondent from its liability on the ground that the deceased was travelling as a passenger in a goods vehicle. Aggrieved by the Tribunal exonerating the 2nd respondent from liability, the claimants preferred this appeal.

( 2 ) APPEAL against the 1st respondent was dismissed for non-payment of process. But that dismissal may not be of consequence, because the Apex Court in A. Robert v United Insurance Company Ltd. , (1999) 8 SCC 226, held that the non-impleading or dismissal of the appeal against the owner of the offending vehicle is of no consequence, when the finding of the tribunal that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle becomes final and, the insurer can be made liable for the enhanced compensation by the appellate court.

( 3 ) THE point for consideration is whether 2nd respondent is not liable to pay the compensation payable to the appellants?

( 4 ) THE contention of the learned counsel for the appellants is that since the deceased was travelling with vegetable bags in the lorry and since the evidence of rw2 and the policy, Ex. B2, also show that the owner of the goods travelling in the lorry is covered by the policy, the Tribunal was in error in exonerating the 2nd respondent from liability. The contention of the learned Counsel for 2nd respondent is that since the Tribunal gave cogent reasons for exonerating the 2nd respondent from its liability, there are no grounds to interfere with the finding of the Tribunal that the deceased was travelling as passenger in a goods vehicle, 2nd respondent is not liable to pay any compensation to the appellants.

( 5 ) THE allegation in the claim petition is that the deceased boarded the offending tony at Macherla to go to Sattupalli with his vegetable bags. PW1, admittedly was not present when the deceased boarded the lorry. The evidence of PW2 that he was a witness to the accident was disbelieved by the Tribunal, since the recitals in Ex. A2 do not support his contention that he was in the offending vehicle at the time of accident. In view thereof, I do not wish to interfere with the findings of the Tribunal that PW2 was not a witness to the accident.

( 6 ) THE allegation in Ex. A2, FIR registered on a complaint given by K. Narasimham S/o Kotaiah, show that he boarded the offending lorry at Macherla and that subsequently K. Venkateswarlu, y. Yellamanda Reddy and his two children, a. Venkateswarlu, Adinarayana Reddy and another person, whose name he does not know, boarded the lorry at Gurazala and that after the lorry reached Nadikudi railway Bridge, it met with an accident due to the rash and negligent driving of the driver. Ex. A1 certificate issued by the sub-Inspector of Police, Dachepalli shows that the unnamed person in Ex. A2 is the deceased. So, from the document

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