Liability for compensation lies with the insurer, as the deceased was not a gratuitous passenger but employed as a cleaner in the vehicle. The Tribunal's misclassification led to an unjust outcome.

JUDGMENT :

H.P.SANDESH, J.

This appeal is filed by the appellants/claimants calling in question the liability to pay the compensation by the insured rather than the insurer and also seeking enhancement of compensation.

2. The date of accident, involvement of vehicle, death of deceased Maheboobsab, son of appellants herein are not in dispute. The only dispute is regarding payment of compensation fastened on the insured rather insurer on the premise that the deceased was traveling in the vehicle as gratuitous passenger.

3. Heard Sri Babu H. Metagudda, learned counsel appearing for the appellants and Smt. Shashikala Jahagirdar, learned counsel appearing for respondent No.3. Notice to respondent No.1 is dispensed with. Respondent No.2 though served remained unrepresented.

4. Sri Babu H. Metagudda taking us through the judgment and award passed by the Tribunal emphasis on issue No.2 wherein the Tribunal framed issue on driving licence. However, the Tribunal proceeded on a different path discussing as the deceased traveled in the vehicle as a gratuitous passenger, no such issue framed on the reasoning. The issues framed particularly issue No.2 is just on driving licence. For easy reference, the issue No.2 is reproduced by us which reads as under;

“2. Whether the respondent No.3 proves that the driver of the offending lorry was not holding valid and effective driving licence as on the date of the accident to drive the said class of lorry and respondent No.2 being the owner of the lorry has handed over the lorry in the hands of a person who had no DL and thereby there is violation of terms and conditions of the policy, hence they are not liable to pay the compensation to the petitioners?”

5. Sri Babu H. Metagudda with all vehemence submitted that the Tribunal has not at all discussed on the point of driving licence in terms of issue No.2. However, the Tribunal proceeded to reason issue No.2 on a different path that the deceased was not traveling in the vehicle as a cleaner/labour, however, he was traveling in the said lorry as a fair paid passenger/gratuitous passenger, therefore, respondent No.2 has violated the terms of insurance policy and as such respondent No.3 insurer is not liable to pay the compensation, except that nothing is forthcoming in the discussion. The Tribunal has extracted the judgments relied on by the respondent all are on the point of persons traveling in the goods vehicle as a gratuitous passenger. With great respect, the reference of the said judgments are not applicable the to facts of the case for the simple reason that the issue framed is on the driving licence and regarding the owner entrusting the vehicle despite knowledge that the driver was not having driving licence.

6. He further submits that the insurance company neither led any evidence nor produced any documents to show that either the driver was not holding any driving licence to drive the vehicle or the owner consciously having knowledge of no licence to drive, despite entrusted the vehicle to the driver. Under these circumstances, the entire discussion is unsustainable in law. The deceased was working as a cleaner/labour in the lorry. It is the specific case of the claimants that the deceased was traveling as a cleaner/laboaur proceeding in the lorry to load goods in the lorry as per the instructions of the owner of the vehicle. Mere statement in the complaint by a person who was in the lorry that the deceased was also traveling with them to attend the marriage will not take away the case of the appellants/claimants for compensation and in the absence of any evidence to that effect by the in