Liability of the insurer affirmed as deceased was categorized as an employee, not a gratuitous passenger, emphasizing clear evidence for negligence in road traffic accidents.

JUDGMENT :

(C.M. POONACHA, J.)

The above appeal and cross-objection call in question, challenging the judgment and award dated 07.12.2016 passed by the Senior Civil Judge and JMFC and AMCT, Thirthahalli, [Hereinafter referred as to ‘Tribunal’] Hence, they are taken up together for consideration.

2. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.

3. The relevant facts in a nutshell are that the claimant is claiming compensation for the death of the deceased in a road traffic accident dated 18.01.2013, the wife and parents of the deceased filed a claim petition arraying the owner, driver and insurer of the mini lorry in which the deceased was traveling, at the time of the accident as respondent Nos.1 to 3 in the claim proceedings. The Tribunal partly allowed the claim petition and awarded total compensation of Rs.8,62,000/- together with interest at the rate of 6% per annum. The insurer was directed to pay compensation awarded. Being aggrieved, the insurer has filed the present appeal and the claimants have filed the cross- objection.

4. Heard submissions of learned counsel Sri KN Srinivasa appearing for the appellant / insurer and learned counsel Sri PN Harish appearing for cross-objectorsclaimants.

5. It is a contention of learned counsel for the insurer that the appellant was a gratuitous passenger traveling in the insured vehicle, which was a mini lorry. Hence, the insurer is not liable to pay the compensation awarded. It is further contended that the claimants have averred in the claim petition that the deceased was working as a conductor cum loader in the insured vehicle, that the risk of the conductor not being covered under the policy of the insurance, the insurer is not liable to pay the compensation awarded. It is further contended that the deceased himself was responsible for causing accidentin question, as when he was in the process of spitting gutka, he lost control and fell down and the driver of the insured vehicle was not responsible for causing the accident in question.

6. Per contra, learned counsel for the claimants justifies the finding of negligence and liability passed by the Tribunal as just and proper. However, in support of the cross- objection, learned counsel for the claimants contended that the income assessed by the Tribunal is on the lower side as well as the compensation awarded on other conventional heads is required to be enhanced.

7. The submissions of both the learned counsels have been considered and the material on record including the records of the Tribunal have been perused. The questions that arise for consideration are:

i. Whether the finding of the Tribunal on liability is erroneous and liable to be interfered with?

ii. Whether the compensation awarded by the Tribunal is liable to be enhanced?

Reg. question (i):-

8. The claimants in the claim petition have specifically averred that the deceased was traveling in the insured vehicle as conductor cum loader. It is further specifically averred that the deceased was traveling in the insured vehicle for distribution of food items in the school.

9. The owner and driver i.e., respondent Nos.1 and 2 before the Tribunal have filed statement of objections wherein it is averred that the deceased was traveling as a loader/helper and he was engaged on a temporary basis for loading and unloading the good