THE HONOURABLE SRI JUSTICE NOUSHAD ALI C.M.A No.743 of 2003 Date: 03.09.2010 Between: New Indian Assurance Co., Ltd., Rep.by its Branch Manager, Anantapur. …………Appellant/Respondent. And J.Rama Mohan and another. ……..Respondent. THE HONOURABLE SRI JUSTICE NOUSHAD ALI C.M.A No.743 of 2003 JUDGMENT: This is an appeal filed by the appellant/Insurance Company challenging the Award dated 24.6.2002 passed in O.P.No.182 of 1995 on the file of the Motor Accidents Claims Tribunal-cum-District Judge at Mahaboobnagar to the extent the award attached liability in a sum of Rs.85,000/- awarded as a compensation in favour of the 1st respondent herein. The appellant/Insurance Company has challenged its liability on the ground that the claimant was travelling as an unauthorized passenger in the offending vehicle, as such no liability can be fastened to it. The case of the claimant is that on 16.11.1994, he was travelling in the offending vehicle bearing registration No.A.P.21.U.1224 along with his goods from Hyderabad to Kurnool. There was another stationary lorry bearing registration No.A.P.02.V.002 near Alampur cross road. The offending vehicle was driven in a rash and negligent manner and hit the stationary vehicle from behind as a result of which, he sustained injuries. He, therefore, filed the O.P and sought for compensation of Rs.2,00,000/- for the injuries sustained. The respondent No.2 (the owner of the offending vehicle) remained ex parte and the appellant/Insurance Company contested the claim. It denied that the accident was caused due to the rash and negligent driving on the part of the driver of the offending vehicle. It also denied the age, avocation and earnings of the claimant and the injuries are suffered by him. It was denied that the driver not having any valid and subsisting driving license and also contended that the claimant was travelling in the offending vehicle as unauthorized passenger, and therefore, no liability could be fastened on it. On the basis of the pleadings, the Tribunal formulated the issues; whether the accident occurred due to rash and negligent driving of the driver of the said lorry and whether the claimant was entitled for compensation and if so, from which respondent and to what amount? The claimant examined himself as P.W.1 and marked Exs.A1 to A8 on his behalf. The appellant/Insurance Company examined its Assistant Administrative Officer, Mahaboobnagar Branch and marked Ex.B1- Insurance Policy. On a consideration of the evidence and material on record, the Tribunal recorded a finding that the accident was caused due to the rash and negligent driving of the driver of the offending vehicle. On the question of quantum of compensation, the Tribunal held that the claimant was entitled for Rs.85,000/- as against the claim of Rs.2,00,000/-. It was held that the offending vehicle was covered by Ex.B1-insuance policy and fastened the liability both on the owner of the vehicle and the appellant/Insurance Company jointly and severally. Challenging the said finding as to the liability, this appeal is filed. Heard Smt Kalpana Ekbote, the learned counsel for the appellant. The learned counsel for the appellant/Insurance Company would submit that the claimant was travelling as unauthorized passenger. Even though the said plea was raised in the counter the Tribunal did not consider the said fact. She would further contend that carrying a passenger in a goods vehicle is not authorized. Therefore, the insurance company should be absolved from its liability. It is true that the Tribunal did not consider whether the claimant was travelling as unauthorized passenger in the vehicle. The Tribunal, however, adverted to the fact that the claimant and others were travelling in the vehicle along with their goods. P.W.1 (claimant) in his oral evidence deposed that on 16.11.1994, he boarded the offending lorry at Pebbair along some kirana goods. He described his occupation as kirana business. He further deposed that due to the accident, his kirana business was discontinued during treatment period. In his cross-examination by the Insurance Company, he denied the suggestion that he was travelling as unauthorized passenger and without any kirana provisions in the vehicle. Except suggesting, the appellant/Insurance Company did not elicit any information that the claimant was in fact travelling as an unauthorized passenger. As mentioned above, the Assistant Administrative Officer, Mahaboobnagar Branch of the appellant/Insurance Company was examined as R.W.1. The said witness did not depose in the chief examination that the claimant was travelling as authorized passenger. He merely stated that the insurance policy did not cover the risk of the unauthorized passengers. In the cross-examination at the instance of the claimant, he admitted that Ex.B1- Insrucnace Policy covered the risk of driver and cleaner and six hamalies and premium was also paid towards non-paid passengers. Except the said evidence of R.W.1, the appellant/Insurance Company, despite taking the plea in the counter that the claimant was an unauthorized passenger, did not adduce any other evidence to establish the said fact. Mere pleading the fact in the counter without establishing it by adducing evidence is not sufficient to hold that the claimant was unauthorized passenger. I am, therefore, of the view that the claimant was not an unauthorized passenger but he was traveling as the owner of goods. Admittedly, Ex.B1-Insrunce Policy covers the liability. No other point has been urged. In the analysis as above, there are no merits in the appeal. The appeal is accordingly dismissed. There shall be no order as to costs. ______________________ JUSTICE NOUSHAD ALI Date:03.09.2010. mrb