Heard Sri Ravi Shankar Jandhyala, learned Standing Counsel, appearing for the appellant and Sri K. Venkatesh Gupta, learned counsel, appearing for the respondents-claimants.

2. This appeal is at the instance of the insurance-company aggrieved against the order and decree in M.V.O.P.No.293 of 2001 dated 26-11-2002 on the file of the Motor Accidents Claims Tribunal, Kurnool, allowing the petition filed under Sections 140 and 166 of the Motor Vehicles Act claiming compensation, on account of death of the deceased in a motor vehicle accident.

3. The few facts, which are necessary for disposal of this appeal, are that the claimants are the children of deceased Kurva Yejji Bojjanna. In an accident that occurred on 8-5-1999 at about 8-30 p.m., the said Bojjanna while getting down from the lorry of respondent No.4, who is the owner of the vehicle, at Sri Satya Sai School, Kollapur, came under the same lorry due to its rash and negligent driving, due to which he sustained severe injuries to head and other parts of body, and ultimately, succumbed to death on the spot. The police registered a case in Crime No.29 of 1999. The case of the claimants is that the accident is only due to rash and negligent act on the part of the driver of the lorry, and hence, both the owner and appellant are liable. The deceased, according to the claimants, was aged about 45 years at the time of accident, and hence, they sought, for compensation of Rs.1,50,000/- (Rupees one lakh and fifty thousand only).

4. The case was contested only by the appellant, and the owner of the vehicle, who was added as 1st respondent before the tribunal and as respondent No.4 in this appeal, did not contest the case. The appellant, contesting the case, denied the rashness and negligence on the part of the driver of the lorry, and contended that since the deceased was a gratuitous passenger, no liability can be fastened on it, apart from that the amount claimed is excessive.

5. On these and other allegations as contained in the respective pleadings, the tribunal framed the following issues:

(1) Whether the accident that occurred on 8-5-1999 at about 8-30 p.m. near Sri Satya Sai School, Kollapur, Mahaboobnagar District, which resulted in the death of the deceased Kuruva Yejju Bojjanna, was on account of the rash and negligent driving of the lorry APN-5054 by its driver?

(2) Whether the petitioners are entitled for the claimed amount of Rs.1,50,000/-? If not how much and against whom?

(3) To what relief?

6. Thereafter, the parties went into trial. During the course of trial, the claimants examined P.Ws.1 and 2 and marked Exs.A-1 to A-3 whereas no oral evidence was adduced on behalf of the appellant, except consent marking of the Insurance Policy as Ex. B-1.

7. On a consideration of the evidence and material on record, the Tribunal held that there was rash and negligence on the part of the driver of the lorry, and further, the claimants are entitled for compensation of Rs.1,50,000/- (Rupees One lakh and (fifty thousand only) with interest at 9% p.a. from the date of petition till the date of payment recoverable from respondents 1 and 2. Hence, this appeal.

8. The main submission made by the learned Standing Counsel, on behalf of the appellant, is to the effect that having regard to the terms and conditions of the policy and having regard to the very nature of accident, which reveals that while the deceased was getting down the vehicle and his one foot was on earth and other was on the footboard, the accident occurred, and he being a gratuitous passenger, the insurance company cannot be mulcted with liability.

9. This submission was sought to be repelled on behalf of the respondents herein stating that the deceased was not a gratuitous passenger and since the deceased virtually got down and though touched the earth, and hence, it can (sic. cannot) be termed as he continues to be a passenger in the vehicle, and therefore, be it a gratuitous or not, the question of exempting the liability