JUDGMENT:

1. Aggrieved by the order dated 13.09.2011 in M.V.O.P. No.89 of 2010 passed by the Chairman, Motor Accidents Claims Tribunal -cum-I Additional District Judge, Krishna at Machilipatnam, (for short “the tribunal”), the appellant/3rd respondent - Bajaj Allianz General Insurance Company Limited, represented by its Manager, has preferred this appeal questioning the award and the liability fastened on it.

2. For convenience's sake, the parties will hereinafter be referred to as arrayed in the M.V.O.P.

3. The claimants have filed an application under Section 166 of the Motor Vehicles Act, 1988 (short “MV Act”) claiming compensation of Rs.6,00,000/- on account of the death of Peruboina Subrahmanyam, who is the son of claimants 1 and 2 and the brother of claimant No.3, in a motor vehicle accident that occurred on 06.12.2009. The said Peruboina Subramanyam would hereinafter be referred to as "the deceased".

4. The case of the claimants is that in the afternoon of 06.12.2009, at the instructions of his employer, who is the owner of Truck Auto bearing No. AP-16-TA-1253 (hereinafter referred to as ‘offending vehicle’) for loading eggs from poultry farms, the deceased sat over the empty egg trays in the offending vehicle. The offending vehicle's driver drove the same rash and negligently applied the sudden brake, due to which the deceased fell on the road. He was run over by the rear wheels of the said offending vehicle and died.

5. Respondents 1 and 2, who are the driver and owner of the offending vehicle, have remained ex parte.

6. The third respondent filed its counter, contending that the accident occurred due to the deceased's negligence and there was no rash and negligent driving on the part of the offending vehicle’s driver. There is no proof of income, and since the deceased was a gratuitous passenger, the insurance company has no liability, and further compensation claimed is excessive.

7. Based on the pleadings, the Tribunal framed appropriate issues. To substantiate the claim, on behalf of the claimants, PWs.1 and 2 got examined, andExs.A.1 to A.5 were marked. On behalf of the 3rd respondent, RWs.1 and 2 got examined, and Exs.B.1 to B.5, besides Ex.X.1, were marked.

8. After considering the evidence on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle’s driver. It fixed the compensation amount of Rs.2,70,000/- with interest at 7.5% per annum from the date of petition till the date of realization.

9. Heard both the learned counsel and perused the record.

10. Learned counsel for the appellant/3rd respondent contends that as per the Ex.B.3-RC Book and Ex.X.1-B register extract, the seating capacity of the offending vehicle is only one, the Tribunal failed to appreciate the fact that the deceased was travelling in the offending vehicle as an unauthorized passenger; the Tribunal erred to appreciate that the offending vehicle’s owner has violated the terms and conditions of the policy. It is further contended that in the absence of any premium, fastening the liability on the insurance company is illegal and contrary to the law laid down by the Apex Court rendered in Lody Shankar’s case; and erred in directing the appellant to satisfy the award and then recover the same from the offending vehicle’s driver and owner.

11. Learned counsel for respondents 2 to 4/claimants 1 to 3 has supported the findings of the Tribunal.

12. Now the point for determination is: Whether the Tribunal is justified in fastening the liability on the appellant/respondent No.3?

POINT:

13. There is no dispute regarding the case of the claimants that the deceased died due to the injuries sustained in the accident, which is evident by Ex.A.1-FIR, Ex.A.2-Certified copy of Inquest Report, Ex.A.3-Charge sheet, Ex.A.4-Postmortem Report and Ex.A.5-M.V.Inspector’s Report. The offending vehicle is covered under Ex.B.2-Insurance policy and is also not in dispute.

14. As seen from the grounds of appeal and contentio