JUDGMENT

Heard Shri. H. M. Dharigond, learned counsel for the appellant and Shri. N. C. Kolloori, learned counsel for respondent No.2.

2. Present appeal is directed against the judgment and award passed in MVC No.317/2008 dated 14.07.2011 on the file of Principal Senior Civil Judge and Chief Judicial Magistrate and Additional Motor Accident Claims Tribunal, Dharwad.

3. Admitted facts are that the claimant got injured in a road traffic accident occurred on 23.05.2008 at about 7.45 a.m., when the driver of the vehicle Mahindra Maxi Truck bearing engine No.GA71L32962 and Chassis No.MA1R22GAA71L5318 has lost control over the vehicle and dashed to the road side mango tree.

4. Claimant claims as a cleaner-cum-hamali in the said vehicle. But in the complaint, the averments made by the claimant are different from what is mentioned in claim petition averments which have been extracted by the learned Trial Judge in the impugned judgment in paragraph No.12 and exonerated the Insurance Company to pay the compensation quantified in a sum for Rs.1.69.000/- with interest at the rate of 6% per annum from the date of petition till the date of realization and directed the amount to be recovered form the owner of the vehicle.

5. Being aggrieved by the same, the claimant is in appeal.

6. Shri. H. M. Dharigond, learned counsel for the appellant contended that the Tribunal has wrongly concluded that the claimant is a gratuitous passenger and not a cleaner- cum-hamali in the said vehicle as on the date of accident and sought shifting the liability on the Insurance Company and allowing the appeal.

7. He also contended that compensation awarded in a sum of Rs.1,69,000/- is on the lower side and sought for reasonable enhancement.

8. Per contra, Shri. N. C. Kolloori, learned counsel for respondent No.2 placed reliance on the judgment of the Hon’ble Apex Court in the case of Balu Krishna Chavan Vs. The Reliance General Insurance Company Limited and Others decided on 03.11.2022 and sought for dismissal of the appeal insofar as, shifting the liability on the Insurance Company is concerned.

9. Insofar as the compensation is concerned, Shri. N.

C. Kolloori, learned counsel for respondent No.2 submits that the Court can pass an appropriate orders taking note of the material evidence placed on record.

10. Owner of the vehicle though served with notice of appeal, remained absent.

11. Taking note of these aspects of the matter, this Court perused the material on record meticulously.

12. On such perusal of the material on record, the claimant has successful established injuries sustained in a roat traffic accident occurred on 23.05.2008 at about 7.45 a.m., on account of rash and negligent driving of the driver of offending vehicle as referred to supra.

13. The Tribunal taking into consideration the injuries sustained by the claimant awarded compensation in a sum of Rs.1,69,000/- and directed that the owner of the vehicle is to pay the compensation on the ground that he was a gratuitous passenger and not cleaner-cum-hamali as is claimed by him admitted discussion in paragraph No.12 of the judgment. 14. Shri. H. M. Dharigond, learned counsel for the appellant, however contended that even in such cases following the dictum of the full Bench judgment of this Court in the case of New India Assurance Company Limited Vs. Yallawwa and Another reported in ILR 2020 (3) 2239, the direction be made to the Insurance Company to pay the adjudged compensation at the first instance and directed to recover the same from the owner in the very same proceedings.

15. Shri. N. C. Kolloori, learned counsel for respondent No.2 in turn has relied on the judgment of Balu Krishna Chavan (supra) wherein their lordships in paragraph No.9 has held as under:

“In the instant case, the appellant has relied on the judgment dated 21.02.2017 passed by this Court in Civil Appeal No(s).3047 of 2017 titled as “Manuara Khatun & Ors. Vs. Rajesh Kr. Singh & Ors”. In the said case also, a Bench of this Court, having ref