B. K. SOMASEKHARA, J.

( 1 ) THE claimants who are the parents of the deceased Pallamal Dorairajan who died in a motor vehicle accident on 23-7-1984 due to the rash and negligent driving of the lorry bearing No. AAC 7594 by its driver while going from mattam village to Srikalahasti, laid a claim for recovery of Rs. 80,000/- under section 110-A of the Motor Vehicles Act, 1939 (the Act) in M. V. O. P. No. 217 of 1987 as against the first respondent, the owner of the lorry and second respondent, the insurer. The Tribunal having held an inquiry into the controversies raised by the contesting respondents held that the accident was due to rash and negligent driving of the vehicle by the driver of the lorry, that the claimants were entitled to recover Rs. 73,000/- by way of compensation but the claim petition cannot be allowed in view of the fact that the claimants failed to prove that the driver of the lorry had been authorised by the respondent no. 1 to carry the passengers including the deceased. Aggrieved by that, the appeal is filed.

( 2 ) THE learned Counsel for the appellants contended that the Tribunal was wrong in dismissing the claim petition on such ground when there was material to show that the driver of the vehicle was driving the vehicle in the course of the employment at the time of the accident and there was no burden cast on claimants to establish that he has been duly authorised by the first respondent to carry the passengers, whether gratuitous passengers or fare paid passengers. In support of his contention he relied upon a decision of the Supreme Court in pushpabai vs. Ranjit G. andp. Co. . The learned Counsel for the second respondent, the insurer has contended that in the absence of proof that the first respondent had authorised the driver to carry the passengers, there was a breach of conditions of the policy and therefore the insurer was not liable to pay the compensation.

( 3 ) THE Tribunal has dealt with the question relating to the liability of the respondents to pay the compensation in this case in issues 1 and 2 in para 6 of the judgment. On facts, it was found that the date of the accident was Adi krutika day when the deceased and several persons travelled in the lorry and according to the contention of the respondents they forcibly entered into the lorry and travelled therein and met the accident. With the testimony of P. W. 2, another co-passenger of the deceased and the testimony of R. W. 1, the first respondent, the Tribunal has held that it was for the petitioners-claimants to show that the driver was given express permission or tacit approval regarding his conduct of collecting fare while travelling in the lorry. The testimony of r. W. 1, the owner of the Lorry was more accepted than the testimony of P. W. 2 10 in that regard. The Tribunal dealt with the theory of the claimants that the first respondent was present in the lorry to authorise the driver to carry the passengers, which they did not establish. The Tribunal depended upon several rulings as detailed therein to come to the conclusion that the respondents were not liable to pay compensation in this case under the circumstances.

( 4 ) ON a careful consideration and proper examination of the true legal questions involved in this case, the Tribunal appears to be not right in holding as above and in dismissing the petition. It was established that the lorry was driven by a duly authorised driver at the instance of the first respondent, the owner and the accident took place in the course of the employment. It was also further established that the first respondent had no knowledge or had not authorised the driver to carry such passengers whether fare paid or non-fare paid and that the vehicle involved in the accident was insured with the second respondent, the insurer at the relevant time. The Tribunal has committed an initial error in dealing with the matter about the express or implied authority by the owner to the driver to carry the passenger

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