Challenging Judgment and Award dated 16.09.2011

passed

by

Senior

Civil

Judge

and

Member

M.A.C.T.,

Nagamangala in MVC.No.32/2006, this appeal is filed.

Brief facts as stated are that on 19.08.2004, Ashraf

Pasha had engaged goods auto bearing registration No.KA-

11/4348 for bringing Bevina Hindi from Kunigal. On his return

journey, driver of goods auto, drove it in rash and negligent

manner, at about 8.30 p.m., near Yediyuru village, driver

applied brake suddenly, vehicle capsized. Due to same, Ashraf

sustained grievous injuries on his head and admitted to A.C.

Giri Hospital, but died during treatment.

Alleging loss of dependency due to his untimely

death, his wife, two minor children and mother filed claim

petition under Section 166 of Motor Vehicles Act, 1988 against

owner and insurer of goods auto.

Despite service of notice, respondent no.1 - owner

did not participate. He was placed ex-parte. Respondent no.2

insurer admitted issuing insurance policy and its validity as on

date of accident. But contended that it was subject to terms

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and conditions and alleged violation. Apart from denying

claimants as legal representatives of deceased, it contended

that deceased was travelling in goods auto as gratuitous

passenger when its authorised seating capacity was only one,

in violation of policy condition. Hence, it was not liable to pay

compensation. It also denied age, occupation and income of

deceased and contended that claim as excessive.

Based on pleadings following issues are framed:

1. Whether the petitioners prove that Ashraf

Pasha died in a motor vehicle accident

that took place on 19.08.2004 at about

8.30 p.m., near Yediyur on Mangalore-

Bangalore road due to rash and negligent

driving of the goods auto bearing No.KA-

11/4348 by its driver?

2. Whether the petitioners prove that they

are the legal heirs of the deceased Ashraf

Pasha?

3. Whether the respondent-2 proves that

the driver of the vehicle KA-11-4348 was

not having valid and effective driving

license to drive the vehicle in question?

4. Whether the petitioners are entitled to

compensation? If yes, how much and

from whom?

5. What award or order?

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6.

Thereafter, claimant no.1 and two others were

examined as PWs.1 to 3 and got marked Exs.P.1 to 7. Insurer

examined it's official as RW.1 and got marked Exs.R.1 to 5.

7.

On consideration, tribunal issues no.1 and 2 were

answered in affirmative and issue no.3 in negative and issue

no.4 in affirmative and issue no.5 by allowing claim petition in

part holding claimants were entitled for total compensation of

Rs.5,14,000/- with interest at 6% per annum and holding

respondents no.1 and 2 jointly and severally liable to pay

same.

8.

Aggrieved by said award, insurer is in appeal.

9.

Sri. O.Mahesh, learned counsel for appellant-insurer

submitted that impugned judgment and award was contrary to

law and material on record. He submitted that as per Ex.R.5 - B

register extract of offending vehicle which shows unladen

weight of vehicle at ‘380 kgs.’ and seating capacity (including

driver/conductor) as ‘one’. Tribunal failed to notice that

deceased was being carried in body of goods auto, in excess of

its seating capacity in violation of policy conditions. Therefore,

fastening of liability of insurer was erroneous.

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10.

On other hand, Sri H.B.Chandrashekhar, learned

counsel for claimants submitted that deceased was traveling in

goods vehicle along with goods. Therefore, he could not be

alleged to be unauthorized passenger. Referring to Rule 100 of

Karnataka Motor Vehicle Rules, it was submitted that hirer of

goods vehicle would be authorized to travel along with goods,

even in goods vehicle. Relying upon decision of this Court in

case of Oriental Insurance Company Limited vs. Sannamma,¹ ,

he submitted that since insurance policy - Ex.R.1 covered risk

of one person and there being no other claim in respect of said

accident, tribunal was justified in fastening liability upon

insurer. Relying upon Full Bench decision