THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.03.2014 PASSED IN MVC NO.308/2011 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, CHICKMAGALUR, AWARDING COMPENSATION OF Rs.4,46,000/- WITH INTEREST @ 6% P.A.FROM THE DATE OF PETITION TILL REALIZATION.

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

ORAL JUDGMENT

1. The present appeal is filed by the owner of the vehicle calling in question of the judgment and award dated 15.03.2014 passed in MVC No.308/2011, Hereinafter referred to as 'impugned judgment' by the I Additional District Judge and Member, MACT., Chikmagalur²H H e e r r e e in in a a ft f e te r r r e f e e f r e re rr d e t d o t a o s a, whereunder the claim petition filed by the claimant has been partially allowed and a compensation of `4,46,000 has been awarded together with interest at 6% per annum. The Tribunal further directed that the compensation awarded shall be paid by respondent No.1 - owner of the vehicle and dismissed the claim petition filed against respondent No.2 - insurer. The Tribunal has held that the claimant was a gratuitous passenger travelling in the insured vehicle which is a goods auto rickshaw.

2. The relevant facts in a nutshell leading to the present appeal are that on 05.05.2010, one Sri Raju³'T s r i ' b d u e n c a l a ' sed' was stated to be travelling in the goods auto rickshaw, which was owned and driven by its owner. That when the same was proceeding, due to rash and negligent driving of the driver of the goods auto rickshaw, the said vehicle met with an accident whereunder, the deceased sustained grievous injuries and succumbed to the same.

3. Claiming compensation for the death of the deceased, his wife and children filed the claim petition arraying the owner cum driver of the goods auto rickshaw as respondent No.1 and the insurer of the said goods auto rickshaw as respondent No.2 in the claim proceedings. The claimant No.1 examined herself as PW1. Exs.P1 to P6 were marked in evidence. The representative of the insurer was examined with RW 1. Exs. R1 to R3 were marked in evidence. The Tribunal by its judgment and award partly allowed the claim petition and awarded compensation as noted above. However, with regard to liability, the Tribunal recorded a finding that the deceased was a gratuitous passenger in the goods vehicle and hence, absolved the insurer from payment of compensation and fastened the liability to pay the compensation on the owner of the vehicle.Being aggrieved, the present appeal is filed by the owner.

4. It is the vehement contention of the learned counsel for the owner that the deceased had hired the insured goods auto rickshaw to transport firewood to his house and hence, the Tribunal erred in fastening the liability on the owner of the vehicle. It is further submitted that the aspect regarding the deceased having hired the vehicle, is forthcoming from the suggestions made by the learned counsel for the insurer while cross examining RW1. Hence, it is contented that the impugned judgment be modified to direct the insurer to pay the compensation awarded.

5. Per contra, learned counsel for the insurer justifies the finding of the Tribunal and further submits that in the complaint [Ex.P3] as well as in the inquest panchnama [Ex.P5], the narration as to the occurrence of the accident at an undisputed point of time clearly denotes that the owner cum driver of the insured goods auto rickshaw had loaded the said vehicle with firewood and when he was returning, the deceased requested to stop the auto and boarded the same and while they were proceeding, the accident occurred. Hence, it is contented that the finding that the deceased was a gratuitous passenger in a goods vehicle is just and proper.

6. The submissions made by both counsels have been considered and the material on record have been perused.

7. The question that arises for consideratio