IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 19TH DAY OF OCTOBER, 2010 BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR MFA No.23773/2009 (MV) Between: The Divisional Manager, National Insurance Co. Ltd., Divisional Office, Mosque Road, Udupi. Represented by: The Manager, Bangalore Regional Office, Subhram Complex, 144, Mahatma Gandhi Road, Bangalore-560 001. Appellant (By Sri.C.M.Poonacha: Lex-Plexus and Sri.B.R.Rajesh, Advoate) And: 1. Smt. Kaveri Nagappa Siddi, Aged about 46 years, 0cc.: Household, R/o. Gullapur, Presently residing at Gersoppa, Honnvar Taluk, Uttar Kannada. 2. Savita Nagappa Siddi, Aged about 26 years, 0cc.: Household, R/o. Gullapur, Presently residing at Gersoppa, Honnvar Taluk, Uttar Kannada. 3. Umesh Bajarang Lawangare, Regd. Owner of truck bearing No.MH-1 1/M-4797, A/P. Rahimatpur, Tal.: Koregaon, Dist.: Satara, State Maharashtra. Respondents (By Sri.T.M.Nadaf, Advocate for C/R-1, R-2) This MFA is filed under Section 173(1) of the Motor Vehicle Act, 1988, against the judgment and award dated 12.08.2009 passed in MVC No.170/2008 on the file of the Addi. MACT, at Honnavar, awarding the compensation of 3,04,000/- with interest at the rate of 6% pa from the date of petition till date of realisation. This titionIcoming on, for admission, this day, the Court delivered the following: JUDGMENT 1. This appeal is listed for admission today and by consent of learned advocates appearing for both the parties, it is taken up for final disposal. 2. In this appeal insurer is questioning the correctness and legality of the judgment and award passed in MVC No.170/2008 by the Additional MACT at Honnavar, dated 12th August, 2009. 3. The facts in nutshell leading to the filing of the appeal are as under: On 14.05.2008, one Nagappa Ganapa Siddi was travelling in a truck bearing registration No.MH-ll/M-4797 from Hubli to Ankola along with his goods i.e., bags of maize. On account of rash and negligent driving of the truck which dashed against the roadside tree and capsized, Nagappa Ganpa Siddi is said to have sustained grievous injuries and succumbed at the spot. 4’ k Oc2f 4. On account of death of Nagappa Ganappa Siddi, his wife and unmarried daughter had filed a claim petition in MVC No. 170/2008 seeking compensation of 5,OO,O00/-. 5. On registering the claim petition, notices were issued to the respondents namely the owner of the truck and insurer of the said truck. Owner of the truck was placed exparte. The 2nd respondent insurer appeared and filed written statement denying the petition averments in toto. 6. It was specifically contended that deceased was a gratuitous-unauthorised passenger travelling in the truck in question and as such the risk of the insured was not covered under the policy in question. On these grounds the insurer has sought for dismissal of the claim petition. 7. On the basis of the pleadings of the parties, the tribunal framed the following issues for its consideration: 1. Whether the petitioners prove that on 14.05.2008 at about 10.00 am at Arabail Ghat on H.N.63 road in Yellapur, the deceased Nagappa Ganapa Siddi being the passenger with bags of maize in the truck bearing No.MH 1 1/M4797 had met with an accident due to rash and negligent driving of the said truck by its driver and the deceased Nagappa Ganapa Siddi4r succumbed to injuries sustained in the accident as averred? 2. Whether the petitioners are entitled to any compensation and if so what amount and from whom? 3. What order and award? 8. 1st claimant namely wife of the deceased got herself examined as PW-1 and got marked Exs.P-1 to P-5. One Nagappa Krishna Siddi a co-passenger was examined as PW-2. Respondent examined one witness H.Krishna Murthy as RW-1 and got marked Exs.R-1 to R-3. 9. On considering the pleadings and evidence on record, tribunal, by judgment and award, allowed the claim petition in part and awarded a compensation of 3,O4,OOO/- with interest at 6% p.a. from the date of claim petition till payment or deposit. It is this judgment and award, which is questioned in this appeal by the insurer. 10. Heard the learned advocates appearing for the parties. Learned advocate Sri.B.R.Rajesh, appearing on behalf of appellant would contend that Tribunal erred in not considering the fact that claimant was a gratuitous . .. -5- passenger travelling in the offending truck on the date of accident and if he had been really carrying the maize/goods along with him in the said lorry, it would have found a place in the spot mahazar or panchanama prepared by the police and the said panchanama / spot mahazar which came to be marked as Ex.R-3 would not reflect that bags of Maize was being carried in the lorry and as such it has to be held and concluded that deceased was a gratuitous passenger. He would also submit that there being no statement recorded in the FIR or in the charge sheet that deceased was travelling along with his goods, the tribunal committed an error in coming to a conclusion that deceased was travelling in the offending truck as owner of goods. He would also submit that deceased did not hire the vehicle for the purposes of carrying his goods and as such insurer is not liable to indemnify the insured as there was no coverage of the gratuitous passenger under the policy. On these grounds he seeks for dismissal of claim petition. 11. Per contra Sri. T.M.Nadaf, learned advocate appearing on behalf of the claimants would support the judgment and award passed by the Tribunal and contended that eyewitness namely PW-2 who had been examined before the tribunal had stated that deceased was travelling in the -6- offending vehicle along with his goods and mere non- recording of maize bags being carried in the offending vehicle either in the FIR or the Spot Panchanama-Ex.R-3 it would not by itself disentitle the claimants seeking compensation. Particularly when eyewitness has been examined to demonstrate that deceased was carrying his goods in the offending vehicle. 12. Having heard the learned advocates appearing for the parties and on perusing the judgment and award passed by the tribunal, it is noticed that claimant are the wife and unmarried daughter of the deceased. The claimants have contended that deceased was travelling in the offending truck on the fateful day i.e, on 14.05.2008. The only contention of the insurer is with reference to non mentioning of Maize Bags” in Ex.R-3. To contend that deceased was not a gratuitous passenger and to disprove the statement or the plea put forward by the insurer, the claimant got examined PW-2, who was a co-passenger and eyewitness to the accident who has stated that deceased was travelling with maize bags and was not a fare paid passenger. The Tribunal has taken into consideration these aspects namely Ex.R-3 as also the evidence of PW- 1 and PW-2 to arrive at a conclusion that the deceased was not a fare paid passenger. * 13. A perusal of Ex.R-3 which came to be marked through the witness of the respondent RW- 1, no doubt, does not reflected that maize bags were found in the lorry as per spot mahzar drawn on 14.05.2008. The certified copy of the same which was made available by Sri.B.R.Rajesh, learned advocate appearing on behalf of insurer in the course of his submission would reflect the mode and method in which the accident has occurred and damages caused to the offending vehicle. It is also stated in Ex.R-3 that household goods were carried in the vehicle had been scattered all over the place, on account of vehicle having been capsized. Admittedly the detail of each goods that was being carried in the vehicle is not reflected. It is only mentioned in general about household articles as goods. In the absence of the investigating authorities not recording as to the actual details of goods that was being carried in the lorry which had got scattered at the spot of the accident would not be within the reach of the claimants to establish these facts. On the other hand they have examined a co-passenger namely PW-2 to establish that the deceased was proceedings in the vehicle along with maize. This clearly goes to show that the deceased was not a fare paid passenger as contended by the learned advocate appearing for the appellant. This issue has been raised by the appellant-insurer before Tribunal has been considered, analyzed and negatived. On re-appreciation of this contention, this Court is not inclined to take a different view from the one that has been taken by the tribunal as it is based on sound appreciation of pleadings and evidence as discussed hereinabove. 14. In view of the above discussions, following order is passed. ORDER a) Appeal is dismissed as it is devoid of merits. b) No order as to costs. c) Amount in deposit is ordered to be transmitted to the jurisdictional tribunal for being disbursed in accordance with the award of the tribunal. d) Appeal having been dismissed application for stay in Misc,Cvl.No.108813/2010 does not survive for consideration and accordingly it is hereby rejected. JtJIYE Vnp*