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Judgment
B. Sreenivase Gowda, J.—As these appeals are arising out of a common judgment and individual awards of the Tribunal, they are heard together and disposed of by this common judgment.
For the sake of convenience parties are referred to as they are referred to in the claim petition.
Brief facts of the case as pleaded in the claim petition are:
That on 10.04.2001 when claimants were going in a Maxicab bearing registration No. KA-12-3707 on NH 4 from Tumkur towards Bangalore near Thotada Salu Kyathasandra the driver of the maxicab drove the same in high speed in a rash and negligent manner suddenly turned the vehicle, due to which it was capsized, as a result claimants sustained grievous injuries. Hence, they filed three separate claim petitions before MACT, Bangalore seeking compensation and the Tribunal has awarded a compensation of Rs. 20,000/- to each claimant with interest, at 6% p.a. and directed the owner and insurer of the offending vehicle to pay the compensation jointly and severally and directed the insurer to deposit the same. Aggrieved by the said award of the Tribunal the insurer of the offending has preferred these three appeal challenging the award on the ground of liability.
As there is no dispute regarding injuries sustained by the claimants in a road traffic accident, occurred on 10.04.2001 due to the rash and negligent driving of the offending vehicle by its driver and quantum of compensation awarded the only point that remains for my consideration in the appeal is:
Whether the Tribunal is justified in fastening liability on the insurer of the offending vehicle?
Learned Counsel appearing for the Appellant contended that the offending vehicle was a goods vehicle and the claimants were travelling as paid passengers in the goods vehicle, therefore the insurer is not liable to indemnify the owner and pay compensation to the claimants and he prays for allowing the appeal by exonerating the insurer from liability to pay compensation to the claimants.
Service of notice to the owner of vehicle was held sufficient and his name has been shown in the cause list but he remained absent.
I have heard the learned Counsel appearing for the insurer, perused the record and have gone through the judgment and award of the Tribunal.
The accident was taken place at 12.30 p.m. on 10.01.2009 near Thotada Salu Kyathasandra. Sri. Babu the claimant in MVC 269/2001 informed the Kyathasandra police at 2.30 p.m. on 10.04.2001 stating that on 10.04.2001 at 12.30 the accident was taken place on NH 4 road near Kyathasandra Thotada Salu. He has stated in his complaint that when he was carrying old wooden pieces in the vehicle in question from Tumkur town to Lakkur and when it reached near Thotada Salu it met with an accident due to the rash and negligent driving of the said vehicle by its driver which resulted in sustaining injuries to himself (MVC 269/01), one Shabeer Ahmed (MVC 268/01) and Syed Jabi Ulla (MVC 267/01) and the driver of the said vehicle left the vehicle and went away. Sri Babu the claimant in MVC 269/01 in column No. 4 of his claim petition has mentioned his occupation as business and in column No. 5 he mentioned his employment as self. In his evidence he has stated trial at the time of accident he was carrying old wooden pieces in the offending vehicle and he has not stated Sri Syed Jabi Ulla and Shabir Ahmed had accompanied him to shift the wooden pieces. Sri. Syed Jabi Ulla claimant in MVC 267/01 in column No. 4 of his claim petition has mentioned his occupation as mango business and electrical work and in column No. 5 he mentioned his employment as self and in column No. 10 both Sri Babu and Syed Jabi ulla have stated that they were travelling in the offending vehicle along with carrying luggage. In column No. 22 both of them have not stated anything about the goods. Sri Shabber Ahamed the claimant in MVC No. 268/01 in column No. 4 of his claim petition has stated his occupation as fruit business, in column No. 5 has stated his employment as self and in column No. 10 he stated that he was travelling along with goods carrying luggage.
The Respondent insurer in their statement of objections admits the insurance policy but stated their liability to indemnity the owner is subject to the driver possessing valid and effective licence. They denied the averments made in para 1 to 6 of the claim petitions including occupation and income of the claimants. In para 2 they have stated that the vehicle was shown as transport vehicle and therefore they are not liable to indemnity the owner in whatsoever manner and pay compensation to the claimants.
In the mahazar Ex P 4 the police have not stated about the contents of goods alleged to have been carried by the claimants. The contention of Sri Babu claimant in MVC 269/01 that he was travelling along with old wooden pieces the same has been admitted by the insurer in their statement of objections. Regarding the contentions of Sri. Syed Jabi Ulla and Shabber Ahmed the claimants in MVC 267 and 268/2001 that they were also travelling in the vehicle in question along with goods is not established. Therefore the Tribunal has committed an error in fastening liability against, the insurer to pay compensation to the claimants in MVC 267 & 268 of 2001.
For the reasons stated herein above MFA 8590/2006 is dismissed as devoid of merit and the insurer is directed to deposit the compensation awarded by the Tribunal together with interest within two months from the date of copy of receipt of a copy of this judgment.
MFAs 8588 and 8589 of 2006 are allowed and the insurer is exonerated from their liability to pay compensation to the claimants and liability is fastened against the owner of the vehicle and he is directed to pay compensation awarded by the Tribunal to the claimants and the claimants are at liberty to recover the compensation amount from the owner of the vehicle.
The amount in deposit in MFA 8590/2006 is ordered to be transferred to the Tribunal for disbursement to the claimant in MVC 269/2001. The amount in deposit in MFAs 8588 and 8599 of 2008 is ordered to be refunded to the Appellant.
No order as to costs.