Mohammed Khizarulla and Others vs M. Baba and Another

Huluvadi G. Ramesh, J.—Appeal is by the claimants challenging the finding of the Tribunal saddling liability on the owner and also on the quantum of compensation awarded on the ground that it is on the lower side. It is stated, on 30.7.2004, deceased Shaik Khamarujjamma alias Kharru along with his mother had been to Penakonda for selling beedi in whole sale and also retail in the Urs fair.

After selling beedi, on 1.8.2004 while returning to their place in a 407 van bearing No. AP 02 T 4323 on hire basis along with the goods (beedi bundles), in the evening around 7.30 p.m. on Penakonda Madakasira road, due to the negligence of the driver of the van in question, the vehicle capsized as a result, Kharru died on the spot and his mother K. Sirajunnissa sustained grievous injuries and was shifted to Government hospital, Penakonda. The dead body of Kharru was taken to Penakonda Hospital where postmortem was conducted. Claiming that deceased was earning Rs. 6,000/- per month by selling beedis, contending that the vehicle was insured and policy was in force, claim petition came to be filed. The same was resisted by the respondent insurer on all counts including the ground of liability contending that the deceased and his mother were travelling as paid passengers in a goods vehicle having attended the Urs, the contention that they were travelling along with the goods is false and that the insurance company is not liable to pay compensation. Based on the pleadings, the Tribunal having raised as many as four issues, after consideration, having held that the accident was due to the negligence on the part of the driver of goods tempo in question, awarded compensation of Rs. 3,47,000/- and saddled the responsibility on the owner of the vehicle. Hence, this appeal.

Heard the counsel representing the parties.

The contention of the appellants'' counsel is, respondent have not cross-examined the witnesses in proof of their contention denying the averments made in the petition as such, it is conclusive proof that the accident occurred while the deceased was travelling along with the goods. Per contra, counsel for the respondent insurer submitted, Ex. P2 document got exhibited by the claimants themselves prove that the mother of the deceased as well as the deceased were travelling in the goods van. Nothing was whispered it was ''along with the goods'' and in the absence of any material on record, rightly the Tribunal held that the deceased was not travelling with the goods and accordingly, fastened liability on the owner of the goods in question. Though the insurer has not cross-examined the evidence of the claimant/mother but the fact remains, in the absence of any material evidence to support the claim of the claimant that both of them were travelling along with the goods, mere oral testimony would not be sufficient when contra evidence is there.

It is submitted even the spot mahazar is not produced to demonstrate as claimed by the claimant that they were travelling with the goods in the vehicle. If at all they were travelling with the goods, the spot mahazar or seizure mahazar would reveal if any goods are there or not. In the absence of the same, mere oral testimony of the claimant/mother cannot be accepted. However, to enable the claimants to establish the same and to produce additional documents like spot/seizure mahazar, etc. to prove that the deceased was travelling with the goods, matter is remanded to the Tribunal. Accordingly, impugned order is set aside. Matter is remitted to the Tribunal for affording an opportunity to the claimants to produce additional evidence in support of their claim. Respondent Insurer is also given liberty to stand by their contention.

Appeal is disposed of.