THE HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A. No. 3493 of 2003 JUDGMENT: Being aggrieved with the decree and order dated 23.12.2002 in O.P.No. 974 of 1997 on the file of the Motor Accident Claims Tribunal-cum-Additional District Judge, Nizamabad, the present C.M.A. is filed. Appellant herein is the 2nd respondent in O.P.No. 974 of 1997. The Petitioner in O.P.No. 974 of 1997 claimed compensation of Rs. 1,00,000/- for the injuries sustained by him in the road traffic accident and the tribunal below granted a sum of Rs. 70,000/- towards the compensation. Aggrieved with the same, the present C.M.A. is filed. Counsel appearing for the appellant-insurance company mainly urged in the appeal under three grounds: Firstly, the injured is an unauthorised passenger, Secondly, the offending vehicle was loaded with Gas Cylinders which is in violation of the policy, and Thirdly, the alleged compensation granted by the tribunal below is excessive besides granting 9% interest. The owner of the offending vehicle though remained set exparte, the counsel representing him urged that the compensation granted by the tribunal below is excessive. Now the point for consideration is whether the Order of the lower Court is sustainable. For the sake of convenience, the parties herein are referred to as they are arrayed in the O.P. before the Tribunal below. As seen from the impugned Order and the documents in particular Ex.A-1 and Ex.A-6, the factum of accident was not disputed. The tribunal below while assessing the evidence of P.W.1 coupled with the documentary evidence Exs.A-1 to A-20 granted compensation of Rs. 70,000/-. As per the evidence of P.W.1 while he was traveling with his goods in the offending vehicle, the said vehicle met with an accident in which he sustained injuries. It is also his evidence that he paid some fare to the driver of the vehicle. It is an admitted fact that the offending vehicle was with the load of Gas Cylinders at the time of accident. In view of the evidence of P.W.1, the petitioner is a midway passenger much less fare paid passenger. R.W.1 a Senior Assistant, who gave evidence on behalf of the 2nd respondent deposed that the offending vehicle is a goods vehicle. As per the terms and conditions of the policy, no paid passenger shall be allowed to travel in the vehicle and the same is in violation of the terms and conditions of the policy. The offending vehicle is valid coverage as per the terms of Ex.B-1. If the terms of Ex.B-1 are taken into consideration, no fare paid passenger is allowed to travel in lorry and there is violation on that score and the insurance company cannot be liable to indemnify the compensation payable to the claimants. Therefore, in view of the clear evidence of R.W.1 coupled with the documentary evidence Ex.B-1 it is proved that injured is a fare paid passenger and that the insurance company is not liable to pay any compensation pursuant to the violation of the terms and conditions of the policy under Ex.B-1. The tribunal below without discussing the evidence on record fastened the liability against the insurance company-appellant. As I said earlier, the owner of the offending vehicle remained set exparte and did not participate in the proceedings before the tribunal below. Therefore, it is the owner of the vehicle to pay the compensation to the claimant. It is urged by the counsel appearing for the owner of the vehicle that the compensation granted by the tribunal below is excessive. The owner of the offending vehicle has not preferred any cross appeal. Therefore, I see no grounds to consider the arguments advanced on behalf of the owner of the offending vehicle. Therefore, in any view of the matter, the finding of the tribunal below granting compensation against the respondent Nos. 1 and 2 is not sustainable and the insurance company is not liable to indemnify the compensation and the petitioners are entitled only to claim the compensation against the owner of the offending vehicle i.e. respondent No.1. Accordingly, the C.M.A. is allowed setting aside the Order of the tribunal below. ___________________ 8.4.2011 CHV