THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED MA C.M.A.No. 2069 of 2007 JUDGMENT: The Oriental Insurance Company is the appellant who filed the appeal challenging the quantum of compensation granted in MVOP NO. 290 of 1997 dated 30.09.2002 on the file of 1st Additional District Judge cum Chairman, Motor Accidents Claims Tribunal, Krishna, Machilipatnam, filed under Section 166 of the Motor Vehicles Act, claiming compensation of Rs. 75,000/- as against which the Tribunal awarded Rs. 33,500/- with 9% interest per annum. Brief facts of the case are that on 8.9.1996 at about 5.00 AM, the first respondent herein and others who were engaged for loading and unloading of snails in the market, were returning from Bhimavaram and when they reached at the road turning at Someswaram Colony on Bhimavaam Gudivada Raod, the lorry being driven by its driver-first respondent in a rash and negligent manner with hectic speed and when the driver applied sudden breaks, the lorry slipped on the road and after turning in cross direction dashed against the opposite lorry. As a result, the claimants who were sitting beside the first respondent in the cabin received grievous injuries and multiple bleeding injuries and the passers bye shifted the injured to the Government Hospital, Kaikalur. On receipt of information, the Kaikalur rural police registered a case in Crime No. 79 of 1999 under Section 337 IPC and later filed a charge sheet against the first respondent. The claimant is a hale and healthy and doing snails business by earning Rs. 3,000/- per month and was aged about 30 years. Due to the accident, the claimant had to spend considerable and heavy amount for medical treatment and still she is unable to attend to her normal avocation. Hence, she claimed total compensation of Rs. 75,000/-. Respondents 1 and 2 driver and owner of Mini Van A.P. 6 U 0355 respectively were set ex parte and the third respondent filed its counter by denying all the material allegations mentioned in the petition and further contended that the petitioner has to prove the occurrence of the accident, their profession, income capacity and age. Further it is submitted that since the injured are gratuitous passengers and the third respondent -Insurance company is not at all liable to pay any compensation. On the basis of above pleadings, the Tribunal has framed the following issues: 1. Whether there is rash and negligent driving of the vehicle by its driver? 2. Whether the petitioners are entitled to claim compensation, if so to what amount and from which of the respondents? 3. Whether the claims of the petitioners is excessive or not? 4. To what relief? In order to prove their respective versions, on behalf of claimants PWs 1 to 3 were examined and marked Exs A1 to A15 and on behalf of respondents RW-1 was examined and Ex. B-1 was marked. The Tribunal after taking into account the documentary evidence and also oral evidence came to the conclusion that the first respondent-driver of the Mini Van bearing No. AP6U 0355 is negligent and there was rashness on his part in causing the accident and accordingly, answered the first issue in favour of the claimants. With regard to the second and third issues, the Tribunal held that the cause of action to continue the proceedings in the present claim petition survives to them and the cause of action is not abated with the death of the deceased first claimant injured during the pendency of the claim petition and they are entitled to continue the proceedings and entitled to claim the compensation. Taking into consideration of Ex. A-13 wound certificate in favour of her mother issued by the doctor and having considered the nature of injuries sustained by the first claimant injured, the period of treatment, and loss of earnings, a sum of Rs. 33,500/- was awarded as compensation. Aggrieved by the same, the Insurance Company filed the present CMA. The learned counsel appearing for the appellant submits that the Insurance Company is not liable to pay the compensation to gratuitous unauthorized passengers in a goods vehicle. He also submits that the Tribunal ought to have observed that there is no proper evidence regarding the earnings of the injured claimant and the amount awarded is without any basis and as on the date of accident, the policy does not exist and the gratuitous passengers are not entitled to claim any compensation. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. As seen from the record, it is no doubt true that the accident occurred on 8.9.1996 and according to the appellant-Insurance Company legal representative of the first respondent herein has no right to claim compensation and according to the first respondent, she is the legal representative of the deceased and she is entitled for compensation. Be that as it may, the Tribunal below did not give any finding with regard to issue Nos. 2 and 3 as to whether as on the date of accident, the policy exists or not, which is a crucial aspect and decided the matter by granting compensation. Hence, in my considered view, the Tribunal committed a serious error in deciding the matter, hence, the impugned order is liable to be set aside. Accordingly, the Civil Miscellaneous Appeal is allowed and the impugned order dated 30.09.2002 passed by the 1st Additional District Judge cum Chairman, Motor Accidents Claims Tribunal, Krishna, Machilipatnam in O.P.No. 290 of 1997, is set aside and the matter is remitted for deciding the issue as to whether as on the date of accident the insurance policy exists or not. There shall be no order as to costs. _____________________ GHULAM MOHAMMED, J Date:1.07.2010 KA