JUDGMENT

The above appeal is filed by the insurer challenging the judgment and award dated 12.4.2013 passed in MVC No.8282/2011 by the XI Additional Judge, MACT, Court of Small Causes, Bangalore1, seeking for enhancement of compensation.

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

1 Hereinafter referred to as the ‘Tribunal’

3. The relevant facts necessary for consideration of the present appeal are that one K.Ramachandra2 was travelling on a tractor trailer on 15.7.2011 as its loader/coolie under the first respondent, when the said tractor being driven by its driver in a rash and negligent manner met with an accident, as a result of which the deceased succumbed to the injuries sustained in the said accident. Claiming compensation for the death of the deceased, his wife, son and mother filed a claim petition arraying the owner and insurer of the tractor trailer as respondents in the claim proceedings.

4. The claimant No.1 was examined as PW.1.

Exs.P1 to P12 were marked in evidence. The officer of the second respondent – insurer was examined as RW.1. Exs.R1 to R3 were marked in evidence. The Tribunal by its judgment and award dated 12.4.2013 allowed the claim petition and awarded a compensation of `5,47,000/- together with interest at 6% p.a. and held that respondent

2 Hereinafter referred to as the ‘deceased’

Nos.1 and 2 are jointly and severally liable to pay the compensation and directed the second respondent - insurer to pay the compensation awarded.

Being aggrieved, the present appeal is filed.

5. The sole contention putforth by the learned counsel for the appellant - insurer is that the risk of the deceased was not covered under the policy of insurance having regard to the fact that in the insured vehicle i.e., the tractor trailer, the seating capacity is only one i.e., for the driver of the vehicle and there is no provision for carrying any other person in the said vehicle. Hence, the policy of insurance issued by the insurer does not cover the risk of the deceased. In support of his submissions he relies on the judgment of a Full Bench of this Court in the case of Gadhilingappa @ Gadhilinga and Anr., v.

K.Guleppa & Ors.,3

6. Per contra, learned counsel for the claimants justifies the judgment and award passed by the Tribunal

3 ILR 2021 KAR 3377

and submits that the Tribunal has rightly noticed that the insurer has collected additional premium of `25/- to cover the risk of ‘WC to one employee”. Hence, the finding recorded by the Tribunal is just and proper. He further submitted that the tractor trailer is a goods vehicle and the insurer is liable to pay the compensation awarded by the Tribunal.

7. The submissions of both the learned counsel have been considered and the material on record including the records of the Tribunal have been perused. The question that arises for consideration is, whether the finding of the Tribunal regarding liability is just and proper?

8. In the claim petition, it is specifically averred that the deceased was a coolie. PW.1 in the examination in chief has deposed at para 3 of her affidavit that the deceased was travelling in the insured vehicle as a coolie/loader cum unloader. There is no cross- examination of PW.1 on this aspect of the matter. The official of the insurer was examined as RW.1. It is his testimony that the deceased was a gratuitous passenger in the tractor trailer and that he admittedly sat on the engine top and hence, the insurer is not liable to pay the compensation. It is his further testimony that no passenger or coolie is allowed to travel in the tractor trailer, that too in the engine top and that no premium is collected from the owner to cover the risk of the person to travel sitting on the engine top. It is forthcoming that in the cross-examination RW.1, he admits that `25/- is collected towards one employee. It is his voluntary statement that it is for the driver. But it is further admitted that in the policy the word ‘driver