The insurance company is not liable for the death of a gratuitous passenger in a goods vehicle, and the Tribunal's pay and recover principle is valid.

JUDGMENT :

The insurance company preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 questioning the correctness of the award dated 19.04.2005 of the learned District Judge and Motor Accidents Claims Tribunal at Srikakulam (hereinafter referred to as ‘the Claims Tribunal’) in M.V.O.P.No.199 of 2000.

2. Heard arguments of Ms. A.Malathi, the learned counsel for appellant-Insurance Company. Respondent Nos.1 to 4 were the claimants before the Claims Tribunal. Notices were served on them but none entered appearance for them. Respondent Nos.5 and 6 were the driver and owner of the offending lorry. The appeal was already dismissed for default as against them.

3. The following facts are required to be noticed:

The subject matter accident took place during the intervening night on 22/23.11.1997 at Payakaraopeta in Visakhapatnam District. The offending vehicle was stated to be a lorry bearing registration No.AP-16-U-7157 and at the material point of time it was carrying Kadapa Slab Stones. Sri Srikakulapu Prasad was the registered owner of this vehicle and the vehicle was insured with the United India Insurance Company Limited as per copy of insurance policy/Ex.B.1. The said insurance policy covered a period from 10.01.1997 to 09.01.1998. The subject matter accident took place on 22/23.11.1997 and therefore at the material point of time the insurance policy was valid and effective. The offending lorry was driven by Sri Bandi Sankarayya. The allegation was that he drove the offending lorry rashly or negligently and dashed on the back of another lorry going in front of it. In this regard, Crime No.152 of 1997 was registered at Payakaraopeta Police Station, Visakhapatnam District/Ex.A.1. After due investigation against him, a charge sheet was laid evidenced by Ex.A.2. In the collision that took place in the above referred manner about five people travelling in the offending lorry fell and four of them died and one of the survivors was PW.2. One of the deceased was Sri Abothula Appanna aged between 36 years and 40 years. His wife and his three minor children filed M.V.O.P.No.199 of 2000 seeking compensation of Rs.2,00,000/-. The driver and owner of the offending vehicle did not choose to appear and contest. Insurance company filed its counter and disputed the liability saying that the deceased was a gratuitous passenger and that the claim made is excessive. It prayed for dismissal of the claim.

4. The learned Claims Tribunal settled the following issues:

1) Whether the deceased –Abothula Appanna died in the motor accident that took place on 22/23.11.1997 at 00.30 hours on NH-5 road at Payakaraopeta in Vizag District in which the lorry AP-16-U-7157 of the 2^nd respondent was involved?

2) Whether the accident was due to the fault of the driver of the lorry AP-16-U-7157 only?

3) Whether the petitioners are dependents on the deceased-Abothula Appanna?

4) What is the compensation to which the petitioners are entitled for?

5) Which of the respondents are liable to pay the said compensation?

6) To what result?

5. For its consideration there was the evidence of PWs.1 and 2 and Exs.A.1 to A.4 on behalf of the claimants. No oral evidence was adduced for respondents. Ex.B.1 is the copy of the insurance policy got exhibited by the insurance company.

6. After detailed analysis of the evidence on record, the learned Claims Tribunal found that the death of Sri Appanna was in an automobile accident which occurred because of the rash or negligent driving of driver of the offending lorry bearing registration No.AP-16-U-7157. Under various heads it assessed the compensation and found that the claimants were entitled to Rs.2,24,000/-. However, it limited the award to Rs.2,00,000/- which was the prayer made in the claim petition. It fastened the liability on the tort-feasor/driver of the lorry and fastened liability on the owner stating that he is vicariously liable for the acts of his driver.

7. One of the principal contentions that was considered was whe