IMPORTANT POINT
The court affirmed that an employee traveling in a Goods Auto Rickshaw is covered under the insurance policy, and compensation must reflect the claimant's permanent functional disability.

JUDGMENT :

MFA No.4671/2014 is filed by the Insurance Company challenging the judgment and award dated 08.04.2014 passed in MVC No.1147/2005 by the Additional District and Sessions Judge and MACT, Udupi sitting at Kundapura, questioning the liability to pay the compensation and also quantum of compensation awarded by the Tribunal.

2. The claimant has filed MFA Crob.No.112/2014 in MFA No.4671/2014 for seeking enhancement of compensation awarded by the Tribunal.

Brief facts of the case:

3. It is the case of the claimant that the claimant was working as Gas Cylinder delivery boy under the employment of Owner of Bharat Gas Distributors and on 28.08.2005 at 12:15 p.m., the claimant was travelling in the Goods Auto Rickshaw bearing Registration No.KA-20 A-2743, from Tekkatte to Kundapura and the said Auto Rickshaw was driven by one Ganesh Marakala and the claimant was sitting beside the driver and due to driving of the Goods Auto Rickshaw with high speed, rash and negligent manner, the Goods Auto Rickshaw was toppled down and hence, the claimant has sustained injuries and claimed compensation by filing the claim petition under Section 166 of the Motor Vehicles Act.

4. The Tribunal after considering the documentary evidence on record has awarded compensation by fastening the liability on the appellant-Insurance Company under various heads as follows:

5. The Insurance Company has challenged the liability and quantum of compensation awarded by the Tribunal.

Grounds raised:

6. Learned counsel for the Insurance Company in support of the appeal has argued and raised two grounds as follows:

a. Admittedly, the vehicle is Goods Auto Rickshaw and the seating capacity is one as per the RC book and insurance policy, but the claimant was sitting beside the driver therefore, there were two persons travelling in the Goods Auto Rickshaw one is driver and another one is claimant therefore, there is violation of conditions of insurance policy hence, the Insurance

Company is not liable to pay the compensation.

b. PW-1 has admitted and also it is proved from the documentary evidence at Ex.R-4-B Registered Extract of Goods Auto Rickshaw, which shows the seating capacity of the Goods Auto Rickshaw is one. Further, Ex.R-5-Insurance Policy shows seating capacity is one therefore, only driver alone can travel by driving the Goods Auto Rickshaw and no other person is allowed to travel in the Goods Auto Rickshaw thus, there is violation of conditions of insurance policy. Accordingly, the Insurance Company is not liable to pay the compensation.

Submissions of counsel for appellant-Insurance Company:

7. It is argued that even if the Insurance Company is liable to pay the compensation, that is according to the Employees Compensation Act, 1923, by complying with Section 147 of the Motor Vehicles Act. Therefore, whatever the amount of compensation awarded by the Tribunal is as per the Employees Compensation Act, 1923, and if it exceeds the amount the claimant can claim by the owner, but not by the Insurance Company. Hence, on these two grounds, the Insurance Company prays to allow the appeal.

Submissions of counsel for claimant:

8. On the other hand, learned counsel for the claimant submitted that Ex.R-4-B Register Extract proves the seating capacity is one plus one, therefore, the Insurance policy covers risk of the claimant also. H