The court upheld the tribunal's decision that the deceased was not a gratuitous passenger and affirmed the compensation awarded based on established negligence and income assessment.

JUDGMENT :

(V.R.K. KRUPA SAGAR, J.)

1. This appeal under section 173 of the Motor Vehicles Act, 1988 is filed by the Oriental Insurance Company Limited impugning the order dated 05.11.2011 of the learned Chairman, Motor Accidents Claims Tribunal – Cum – III Additional District Judge, (FTC), Ongole in MVOP.No.591 of 2009.

2. Heard arguments of Sri Samboju Bala Gopal, the learned counsel for appellant/insurance company and no arguments were submitted on behalf of the respondents.

3. The following facts are required to be noticed:

Sri Y. Venkatesh Reddy aged 22 years was in the employment as Hitachi vehicle helper. Sri K.Srinivasa Reddy is Hitachi vehicle operator. Lorry bearing registration No. AP KA 09 A 4666 was carrying this Hitachi on 15.03.2009 from Thirhahallii to Mysore and when it reached near Kudumallaige Village, there was rash or negligent driving on part of its driver and as a consequence accident occurred and Sri Venkatesh Reddy fell down and the Hitachi vehicle fell upon him causing his death. At the relevant time, the deceased was travelling by sitting with the Hitachi vehicle where as its operator Sri K. Srinivasa Reddy was sitting in the cabin of the lorry. The incident of accident was reported to police and Cr.No.42 of 2009 was registered at Maluru Police Station of Karnataka State. After due investigation, a charge sheet was laid before a competent court alleging the cause of accident was out of rash or negligent driving of the driver of the offending lorry. The parents of the deceased filed MVOP.No. 591 of 2009 before learned Chairman, Motor Accidents Claims Tribunal - Cum - Additional District Judge, Ongole showing the driver of the offending vehicle as R1 and the owner as R2 and the insurer as R3 and prayed for compensation of Rs.5,10,000/-. The owner and driver did not choose to appear and contest. The insurance company contested the matter and filed a counter and raised various contentions and sought dismissal of the claim. Learned claims tribunal settled the following issues for trial.

1. Whether the accident occurred due to rash and negligent driving of the driver of Lorry bearing No. KA 09 A- 4666, on 15-3-2009 evening at about 4-45 P.M., at Thirthahalli, Shimoga NH-13, in turning of Biluva Hugulahalli at Kudumallige, Thirthahalli Taluk, Karnataka State?

2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?

3. Whether the age and income of the deceased are correct?

4. To what relief?

There was the evidence of PW. 1 and 2 and Exs.A1 to A16 for claimants. There was the evidence of RW.1 who was an officer of the insurance company through whom the insurance policy in Ex.B1 was exhibited. After hearing the learned counsel on both sides and after considering the evidence on record, the learned claims tribunal categorically held that the death in this road accident was out of rash or negligent driving by the driver/R1 therein. It found that the parents of the deceased were entitled to seek compensation. Before the tribunal the evidence was produced to show that the deceased was earning Rs.10,000/- per month. However, after narrating the facts and circumstances, the learned claims tribunal did not agree with that contention and recorded that deceased was earning Rs.6,000/- per month. After applying multiplier No.13, it assessed loss of dependency at Rs.4,68,000/-. It granted Rs.2,000/- towards funeral expenses, and Rs.5,000/- towards transportation charges and Rs.25,000/-towards loss of estate. Before the claims tribunal, the insurance company argued that the deceased was a gratuitous passenger and by sitting with the vehicle, he violated the policy terms. After