JUDGMENT

Swapna Joshi, J. (Oral) - Admit. Heard finally by consent of learned counsel appearing on behalf of appellant and respondent no.1. None appeared on behalf of respondent no.2 though served.

2. This appeal has been filed against the judgment and order passed by the learned Member, Motor Accident Claims Tribunal-1, Nagpur in Claim Petition No. 940/2009 whereby the learned Tribunal has directed respondent no.1-owner of auto-rickshaw and respondent no.2-Insurance Company to pay an amount of Rs. 3,53,000/- including of N.F.L. amount to the petitioner with interest @ 7.5% per annum from 8.10.2009 i.e. the filing date of petition, till payment of entire amount.

3. The facts giving rise to the present appeal may be stated in nutshell as under :

(a) On 21.6.2009, the original claimant was proceeding by vehicle bearing no. MH-40-A-3926 from Andhalgaon to Mohadi. The auto-rickshaw was carrying in all eleven passengers. At about 3.20 pm, on the turning, the vehicle turned turtle due to overloading of passengers beyond the capacity of vehicle. In the said accident, respondent no.1 received grievous injuries, whereas other passengers were injured. After the accident, respondent no.1 was shifted to the hospital at Nagpur.

(b) The First Information Report was lodged by Andhalraon Police Station. On the basis of which the offence came to be registered under Sections 279, 337, 338 and 427 of the Indian Penal Code read with Section 184 of the Motor Vehicles Act, vide Crime No. 55/2009 against the driver of the offending vehicle. The respondent no.1-original claimant filed Claim Petition No. 940/2009 under section 166 of the Motor Vehicles Act, 1988. It was the case of respondent no.1- claimant that accident took place due to rash and negligent driving of the driver of auto-rickshaw due to which he sustained grievous injuries and has suffered permanent disability and, therefore, respondent no.1 claimed a compensation of Rs. 3,00,000/- (Rs. Three Lacs). It is the case of the appellant (original respondent no.2)-Insurance Company that it was not liable to pay any compensation, as original respondent no.1, who is the owner of auto-rickshaw, committed the breach of terms and conditions of the policy as the driver had carried eleven passengers in the vehicle. According to respondent no.1, as per the certificate of registration, the carrying capacity of the vehicle was six persons and as the vehicle was overloaded, the driver lost his control over the vehicle and, therefore, the vehicle turned turtle and the passengers had sustained injuries.

(c) The learned Tribunal has considered the facts and the evidence led before it and after hearing both the sides came to the conclusion that the appellant herein, the owner as well as the driver of the vehicle are jointly and severally liable for the claim of Rs. 3,53,000/- with interest @ 7.5% per annum.

4. The learned counsel for the appellant-insurance company vehemently argued that the learned Tribunal has not considered the evidence on record that the accident had occurred due to the overloading of the passengers by the auto-rickshaw beyond the carrying capacity of the vehicle. It was submitted that the auto-rickshaw driver carried eleven passengers and the capacity of the vehicle was to carry six passengers only and as the auto-rickshaw was overloaded by the passengers, the vehicle turned turtle on the turning point of the road and caused injuries to the passengers and therefore the Insurance Company is not liable to pay the compensation as such and the liability cannot be fastened on the appellant.

5. Per contra, the learned counsel for respondent no.1-claimant contended that even assuming that the auto-rickshaw was overloaded by eleven passengers, however, it is to be considered that the policy of the appellant covered six passengers and one driver. It was further submitted that the case of respondent no.1-claimant is covered under the said policy and as none of the passengers had filed any petitio