National Insurance Co. Ltd. vs Sri. Giddegowda and Mr. K Ismail

K. Govindarajulu, J.—These three appeals arise out of a common judgment and award in MVC Nos.77, 78 and 79/1997 dated 20.4.2005 on the tile of the Motor Accident Claims Tribunal at Holenarasipura. Respondent No.2 in the aforesaid claim petitions is the appellant herein. For the sake of convenience, parties will be referred to by their respective ranking assigned to them by the Tribunal.

It is the case of the claimants that on 11.9. 1996 at about 7.45 p.m., they were travelling in a lorry bearing No. KA-19/2568 belonging to respondent No.1 by obtaining the same on hire to transmit the potatoes from their native place to Bangalore. The driver of the lorry drove the same in a rash and negligent manner causing accident at about 7.45 p.m. on B.M.Road near Hosabelepalya Gate by hitting against the bridge. Due to the accident, they sustained heavy loss and extensive damage to the potatoes they were carrying in the vehicle. They have also sustained grievous injuries for which act., the rash and negligent act on behalf of the driver was the main reason. Therefore, they filed the aforesaid claim petitions seeking award of compensation in a sum of Rs. 2,00,000/-, Rs. 2,50,000/- and Rs. 3,00,000/-respectively from the respondents.

The insurer of the vehicle, the appellant herein has contested the matter by filing its objections denying the contentions urged in the claim petitions. It has denied that the vehicle was driven by its driver in a rash and negligent manner. It has further contended that since the insured has violated the policy conditions and that the vehicle was used as passengers carriage instead of goods carriage, it is not liable to pay compensation.

On the basis of the pleadings of the parties, the Tribunal has framed three issues. All the issues were taken up for consideration jointly. On behalf of the claimants, P.Ws.1 to 4 were examined and documents Ex. P1 to Ex. P17 were marked in their evidence. On behalf of the respondents, the representative of the Insurance company was examined as R.W1. The documents Ex. R1 to Ex. R4 were marked in his evidence. After considering the oral and documentary evidence produced by the parties, the Tribunal has rejected the contention of the Insurance Company that it was not liable to pay the compensation. All the claim petitions were allowed by awarding compensation in a sum of Rs. 55,000/- in MVC No,77/1997, Rs. 1,34.000/- in MVC No.78/1997 and Rs. 1,45,000/- in MVC No.79/1997. The Tribunal has also awarded interest at 8% per annum from the date of the application till the date of deposit. The owner and insurer of the vehicle were made liable to pay the compensation jointly and severally.

Learned Counsel for the appellant-Insurance Company contends that the Tribunal was not right in fastening the liability on the appellant-Insurance Company. It is argued that the FIR - Ex. P1 gives the particulars of the genesis of the case. According to the FIR, the vehicle was proceeding towards Bangalore. At that time, the claimants sought for a lift to come over to Bangalore. They were passengers in a goods vehicle. Therefore, the finding recorded by the Tribunal that they were travelling in the vehicle in question along with their goods is not correct. The passengers in a goods vehicle are not covered under the insurance policy. He prays for absolving the Insurance Company from the liability.

On the other hand, learned Counsel appearing for the claimants contends that the ''B'' extract marked as Ex. R1 reveals that the seating capacity of the vehicle was 4 + 1. It is a goods vehicle. The policy covers the persons mentioned in the ''B'' extract. The Insurance Company cannot be absolved from paying compensation; Therefore, the judgment and award of the Tribunal in fastening the liability on the Insurance Company is just and proper and does not call for Interference. He prays for dismissal of the appeals.

The occurrence of the accident is admitted and the actionable negligence is not disputed. The point that arises for consideration in these appeals is whether in the facts of the case, the appellant Insurance Company can be absolved from payment of compensation?

Ex. R2 is the policy issued by the Insurance Company in respect of the offending vehicle. Ex. R2 has been produced by the representative of the Insurance Company. The appellant-Insurance Company admits having issued the insurance coverage on the material date of the accident. The case of the claimants is that they were travelling in the lorry along with their goods. The appellant has not produced any evidence to dislodge the contention of the claimants that they had boarded the lorry along with the goods belonging to them. The Assistant Administrative Officer of the appellant-Insurance Company was examined as R.W1. In her evidence, she has stated that the vehicle involved in the accident is a goods carrier. As per the registration certificate, the seating capacity of the lorry was 4 + 1. The copy of the policy and policy endorsements are at Ex. R3 and Ex. R4. According to R.W1. Rs. 50/- was paid as a premium for non-fare passenger. A premium of Rs. 30/-was paid for two workers of the lorry. Admittedly, the vehicle in question is a goods carrying vehicle. The suggestion of the learned Counsel for the claimants to R.W1 that the persons travelling along with the goods in a goods vehicle will be covered under the non-fare passenger clause was not denied by her. Ex.P2 is the ''B'' extract of the registration card wherein the seating capacity is shown as 4 + 1. Ex.P3 is the copy of the insurance policy wherein Rs. 1,245/- is recovered as basic premium and Rs. 50/- for legal liability to passenger/non paid passenger and Rs. 30/- is recovered for employees. Rs. 75/- is recovered towards third party damage, which is unlimited. The said document does not specifically mention as to the number of persons that are covered for the liability under premium of Rs. 50/-. If this Rs. 50/ premium was levied for uncertain number of persons, then the same would have been found place under Ex.R3. Since the vehicle is permitted to carry 4+1 persons, It actually implies that the premium of Rs. 50/-which is covered towards legal liability to passengers/non fare paying passengers is to cover 4+1 passengers. On appreciation of the materials on record, the Tribunal has come to a conclusion that the appellant insurance Company is liable to pay compensation along with the owner of the vehicle. We do not find any error in the said judgment and award. The approach of the Tribunal in coming to the conclusion that the claimants are covered under the policy is just and proper. There is no merit in these appeals. They are accordingly dismissed. The amount in deposit shall be transferred to the Tribunal forthwith for payment to the claimants. No costs.