JUDGMENT :

T. MALLIKARJUNA RAO, J.

1. Aggrieved by the order dated 26.11.2010 in M.V.O.P. No. 318 of 2009 passed by the Chairman, Motor Accidents Claims Tribunal-cum-IX Additional District Judge (F.T.C.) Guntur, the insurer-M/s. IFFCO-TOKIO General Insurance Company Ltd. represented by its Manager, which is arrayed as the 4th respondent, has filed this appeal seeking to have its liability set aside.

2. The parties will be referred to as arrayed in the M.V.O.P.

3. The Claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, read with Rules 455 and 476 of the Motor Vehicle Rules, 1989, for a compensation amount of Rs.1,00,000/- on account of the injuries sustained by him in the accident that occurred on 29.01.2009. It is the case of the Claimant that on 29.01.2009 at about 4.00 PM, she and others were travelling in an auto bearing No. AP-07W-3598 from Dhulipalla to Sattenapalli. When the said auto reached Bagya Nagar colony, Dhulipalla, the auto of the third respondent and the lorry of the first respondent collided (head-on collision); in that accident, the Claimant sustained injuries, and the accident occurred because of the rash and negligent driving of both the drivers of the lorry and auto.

4. The 1st respondent is the owner, the 2nd respondent is the insurer of the lorry, the 3rd respondent is the auto owner and the 4th respondent is the auto insurer. Respondents 1 and 3 have remained ex-parte.

5. The 2nd and 4th respondents have filed their counters, denying all the allegations, contending that the respective drivers of the lorry and auto did not have valid driving licences at the time of the accident.

6. Based on the pleadings, the Tribunal framed appropriate issues. On behalf of Claimant, Petitioner herself examined and marked Ex.A.1 to A.5 and Exs.X.1 to X.2. On behalf of 2nd respondent, let in no evidence. On behalf of the 4th respondent, its senior legal executive was examined as RW-1, marked Exs.B.1 to B.3.

7. On appreciation of the evidence adduced on both sides, the Tribunal held that both the drivers of the lorry and the auto were negligent and caused the accident. The percentage of negligence on their part is fixed at 50% each.

8. Learned counsel for the appellant contended that the claimants failed to make out any case against the driver of the auto, and the burden was on the claimants to prove that the auto driver was at fault. The Tribunal found that the auto driver also contributed to the accident by carrying more passengers than the capacity of the auto.

9. Learned counsel for the Claimant supported the findings of the Tribunal.

10. Now the point for consideration is whether the Tribunal is justified in fastening the liability on the auto insurer.

11. As seen from the grounds of appeal, the appellant has not disputed the quantum of compensation awarded to the Claimant. As seen from the order, the Tribunal granted a compensation amount of Rs.54,000/- to the Claimant. The Claimant relied on the disability certificate-Ex.A.5. The Tribunal is pleased to grant an amount of Rs.18,000/- under the head of permanent disability. The Tribunal also awarded an amount of Rs.2,000/- under the head of transportation, Rs.9,000/- under the head of loss of earning, Rs.5,000/- under the head of extra nourishment and medical expenditure and Rs.10,000/- under head of pain and suffering and also an amount of Rs.10,000/- under the head of further surgery and altogether an amount of Rs.54,000/- is awarded.

12. The Claimant herself was examined as PW-1 to prove the manner of the accident, and she also examined PW-2, the doctor who treated her, and issued a wound certificate. This court views that the evidence of PW-2 is not much relevant to decide the contentions raised in the appeal. On behalf of the 4th respondent also, RW-1-G.Purnachandra Rao was examined. Admittedly, he is not an eyewitness to the occurrence. He has given evidence based on the record. Thus, the evidence of RW-1 is also not helpful in deciding the con