( 1 ) THIS appeal of the insurance company is directed against the judgment and award dated 3-10-1989 of mact ii, chitradurga, challenging its finding that appellant is also liable to pay compensation to respondent 1-claimant as awarded by it.

( 2 ) RESPONDENT 1's (claimant's) case that on 13-7-1984 at about

( 3 ) 30 a. m. when he was travelling in the said lorry bear ingregistration No. Mye 4628 belonging to respondent 3 herein ('r3' for short) transporting 5 bags of coconuts from hiriyur to chitradurga, the lorry met with accident due to negligent driving by its driver respondent 2 ('r2' for short) and in that accident he suffered bodily injuries, has been accepted by the tribunal in the light of claimant's evidence adduced before it. The fact that respondent 1 suffered bodily injuries in the said accident, which resulted due to negligent driving of the lorry by respondent 2 is not in dispute. It is also not in dispute that he was travelling in the said lorry at the time of accident. 3. The learned counsel for appellant contended that the appellant insurer, who was respondent 3 in the claim petition, could not have been held liable to pay compensation to claimant since the policy of insurance issued by the appellant in respect of the said vehicle and in favour of its owner respondent 3 did not cover the passenger's risk, as also the tribunal erred in appreciation of P. W. 1 claimant's evidence, in holding that he was travelling in the said lorry transporting 6 coconut bags. Substantiating his argument, he submitted that there is no mention in ex. P-2 fir and ex. P-4 spot mahazar of the fact that respondent 1 was travelling in the said lorry along with coconut bags.

( 4 ) ON the other hand, the learned counsel appearing for respondent-claimant argued otherwise in support of the impugned award of the tribunal. His submission was that the tribunal was justified in accepting the testimony of P. W. 1 who has deposed that he was transporting the said coconut bags in the said lorry at the time of accident on payment of transportation charges to respondent 2. He further submitted that the statement of the cleaner of the lorry in ex. P-2 fir was recorded by the police during their investigation and the claimant cannot be held bound by its contends, more so, when respondents have failed to lead any rebuttal evidence on record. Similar was his contention in respect of contents of ex. P-4 spot mahazar.

( 5 ) AS regards the tribunal's conclusion that the respondent claimant was travelling in the said lorry transporting 5 coconut bags therein paying Rs. 400/- to the lorry driver towards transportation charges, I find the same supported by acceptable evidence of P. W. 1 respondent-claimant and there is no valid reason to disagree with the same. As rightly submitted by the learned counsel for respondent-claimant that mere non-mention in ex. P-2 and ex. P-4 of the presence of coconut bags in the said lorry does not necessarily mean that claimant was not at all transporting the same therein, when he had rendered positive evidence on record before the tribunal testifying to the fact of his transportation thereof. In that view of the matter, I do not find any serious infirmity in this conclusion of the tribunal.

( 6 ) ADVERTING to the next contention of appellant's learned counsel that in view of the legal proposition laid down by the full bench decision of this court in National Insurance Company v. Dundamma, that to make the insurance company liable to pay compensation in respect of owner of the goods travelling in goods vehicle, it is necessary for the latter to establish that he had been transporting the goods under an agreement with the owner of the particular goods vehicle; there is no dispute about this settled legal position. But, as rightly submitted by the learned counsel for respondent-claimant, that the evidence of P. W. 1 to the effect that he boarded the said lorry along with his coconut bags after paying Rs. 400/-