THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A.NO.37 OF 2007 AND M.A.C.M.A.NO.2896 OF 2011 COMMON JUDGMENT: In both the appeals, the claimants/petitioners are appellants. They claim to have received injuries in a motor accident on 01-06-2001 at about 9.15 P.M when they were travelling in the lorry bearing No.KA.05- D7229 with some goods, another lorry bearing No.TN-9S-8073 is said to have come in the opposite direction and the driver of the lorry, in which the petitioners were travelling, drove it in a rash and negligent manner and both the drivers lost control and dashed against each other vehicles, as a result of which, the petitioners received injuries. The first respondent is the owner of the opposite vehicle; the second respondent is the Insurance Company; third respondent is the owner of the lorry in which the petitioners were travelling and the 4th respondent is the Insurance Company. The second and fourth respondents have filed separate counters disowning their liability and also putting the blame of accident on the other side. After considering the evidence on record, the learned Tribunal came to a conclusion that the incident was due to the fault of the driver of the lorry KA-05-D-7229 in which the petitioners were travelling and there is no rashness or negligence on the part of the driver of the opposite vehicle. So far as the claim for compensation is concerned, taking into consideration the nature of the injuries and also the treatment, in O.P.No.105 of 2002 a sum of Rs.12,000/- was granted whereas in O.P.No.101 of 2002 a sum of Rs.60,000/- was granted. Aggrieved by the said awards, the present appeals have been filed. Now the points that arise for consideration are:- 1. Whether the incident was happened due to the fault of the drivers of the both the vehicles? 2. Whether the appellants are entitled for compensation from the Insurance Companies? POINTS:- There is no dispute about the fact that the case was registered against the driver of the vehicle KA-05-D-7229 in which the petitioners were travelling and since he is reported to have died, no charge sheet was filed. The lower Tribunal has taken into consideration of the evidence of the injured persons and came to a conclusion that the driver of the lorry, in which the petitioners were travelling, was died and in as much as the petitioners are unauthorised passengers in the goods vehicle, the 4th respondent is not liable and it only the owner of the vehicle who is the 3rd respondent that is liable to pay the compensation. The counsel for the 3rd respondent who was made liable to pay the compensation contends that the evidence on record clearly goes to show that it was a collision between both the vehicles. The counsel for the 2nd respondent with whom the opposite vehicle was insured contended that since F.I.R clearly shows that the rashness and negligence was only on the driver of the vehicle in which the petitioners were travelling, there is no liability on the part of the Insurance Company. Evidently, while considering a claim under the Motor Vehicles Act,1988 the cause of the incident and the rashness and negligence is a question of fact which is to be independently arrived at by the Court. As can be seen from the order of the lower Tribunal, it is stated that the petitioner has averred that the driver of the lorry in which the petitioners were travelling is guilty of rashness and negligence, but, however the order of the lower Tribunal itself clearly goes to show that in the allegations made by the petitioner, the driver of the opposite vehicle also drove it in a rash and negligent manner in a high speed and both the drivers lost control and dashed against each other. Therefore, it is not a case where the petitioners have not averred about the rashness and negligence on the drivers of the both the vehicles. Even if an allegation was made in the F.I.R with regard to a particular cause of rashness and negligence, while considering the civil liability for compensation as a tort, the Tribunal can take into consideration the available evidence and come to his own conclusion, but, however, in this case owners of the vehicles did not file any counter and both Insurance Companies have taken opposite stand attributing rashness and negligence to the drivers of the other vehicles. Therefore, in view of the above circumstances, the fact remains that both the vehicles have collided together and the attribution of the driver of the lorry in which the petitioners were travelling may be more, but, however, the averments in the petition and the evidence of the injured persons clearly goes to show that there was some contributory negligence on the part of the driver of the opposite lorry. Accordingly, the contributory negligence of the driver of the opposite vehicle is fixed at 40% and the driver of the lorry in which the petitioners were travelling is fixed at 60%. Since the petitioners are unauthorised travellers the 4th respondent is not liable to pay any compensation, but, however, the second respondent is to make good a proportionate 40% of the awarded claim. The Tribunal has directed the 3rd respondent to deposit the amount within six weeks with interest at 6% and if not deposited granted interest @ 12% which is not proper. The respondents 1 and 2 are directed to deposit 40% with interest at 6% from the date of petition and the 3rd respondent is to deposit 60% from the date of petition with interest @ 6%. Accordingly, the appeals are allowed to the extent indicated above. _______________________ N.R.L. NĀGESWARA RĀO,J 30-11-2011 TSNR