HON’BLE SRI JUSTICE B.N. RAO NALLA M.A.C.M.A. No. 352 of 2005 DATED: 21.10.2010 Between: The National Insurance Company Ltd. Appellant/R2 And 1. M. Rameswar 2. S. Ramanjappa Respondents JUDGMENT: This Civil Miscellaneous Appeal is directed against the order dated 16.09.2004 made in O.P. No. 1193 of 1999 on the file of the Motor Accidents Claims Tribunal-cum-VI Additional District & Sessions Judge, Mahabubnagar, whereby an amount of Rs.25,000/- was awarded to the petitioner-claimant together with interest at 9% per annum from the date of the petition till the date of realisation against his claim of Rs.50,000/-. For the sake of convenience, the parties will be referred to as they are arrayed in the Original Petition. The brief set of events that led to the present proceedings are that on 11.09.1997, while the petitioner was travelling with his goods by a lorry bearing No. ADD 4294 as non-paid passenger from Erravalli to Kurnool, and when the lorry reached near culvert, the driver of the lorry drove it in a rash and negligent manner at high speed and dashed against another lorry going ahead of it. Due to the accident, the petitioner sustained grievous injury to the ankle of his left foot, lacerated injuries to right knee and right heal, injuries to right lower leg, right thigh and left side of the chest. The petitioner spent Rs.5,000/- towards his treatment. Even after the treatment, the petitioner was not able to walk properly with injury to the ankle. Hence, the petitioner- claimant filed O.P. No. 1193 of 1999 claiming compensation of Rs.50,000/-. The 2nd respondent-Insurance Company filed written statement inter alia denying all the allegations made in the O.P. and stated that the risk of the persons travelling in a goods carrier as paid or non-paid passenger is not covered under the policy since there is a specific stipulation in the policy not to carry any passengers and carrying passengers is otherwise contrary to the provisions of the permit and also the Motor Vehicle Act, 1988, as such, it is not liable to pay compensation. Based on the pleadings, the Tribunal framed the following issues: (i) Whether the accident occurred due to rash and negligent driving of the driver of the lorry bearing No. ADD 4294? (ii) Whether the petitioner is entitled to claim compensation from the respondents, and if so, to what amount and against whom? (iii) To what relief? To substantiate the claim of the petitioner-claimant, he was examined as PW1 and got marked Exs.A1 to A7. RW1 was examined besides marking of Ex.B1 on behalf of the respondents. Taking into consideration the evidence and other material on record, the Tribunal awarded a total compensation of Rs.25,000/- in favour of the petitioner-claimant with proportionate costs and interest thereon at 9% per annum. Aggrieved by the same, the 2nd respondent-National Insurance Company Limited, preferred this appeal. Heard the learned counsel for the appellant and perused the material placed on record. Since none appeared for the 1st respondent herein, the matter is disposed of on merits. The evidence of PW1 is crystal clear that the accident occurred due to rash and negligent driving of the driver of the lorry bearing No. ADD 4294 inasmuch as no suggestion was made to PW1 in cross- examination that the accident was not due to rash and negligent driving of the driver of the lorry No. ADD 4294. The factual aspects of the accident as contained in Ex.A1 – FIR and Ex.A4 – Charge sheet are not disputed by the 2nd respondent-Insurance Company. Hence, from the material evidence on record, this Court is of the opinion that the accident occurred only due to rash and negligent driving of the driver of the lorry bearing No. ADD 4294. Moreover, according to the contention of the 2nd respondent-Insurance Company the persons travelling in the goods carrier as either paid or non-paid passenger is not covered under the risk. However, it is to be noticed that the petitioner travelled in the lorry in the capacity of owner of the goods being carried in that lorry as is clear from his evidence. Admittedly, the 2nd respondent denied this fact. When the 2nd respondent denies the factum of the petitioner travelling in the lorry as owner of his two bags, naturally, the burden shifts to the 2nd respondent to prove that the petitioner did not carry two bags of rice along with him in the capacity of owner of the goods, but he has not chosen to examine either the driver or the cleaner of the lorry in support of his contention. Further, it is to be noticed from Exs.A3 and B1 – copies of Insurance Policy, that the owner of the lorry bearing No.ADD 4294 paid additional premium of Rs.50/- to allow one passenger as non-paid passenger. Viewed from any angle, I am of the considered opinion that the appellant-National Insurance Company Limited shall be made liable to pay compensation to the petitioner-claimant. Hence, the contention put forth by the appellant- National Insurance Company Ltd. that it is not liable to pay compensation, is not sustainable. Therefore, the Tribunal is rightly justified in fastening liability on the appellant to pay compensation to the petitioner-claimant. . Hence, I see no reason to interfere with the well-considered order dated 16.09.2004 impugned in this appeal. Hence, this appeal is devoid of merits and the same is accordingly dismissed. No order as to costs. _________________ B.N. RAO NALLA, J 21-10-2010 bcj