IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4706 of 2003 Between: Polanati Narayudu .. Appellant AND A. Narayanarao & 2 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4706 of 2003 JUDGMENT: The appeal is directed against the award in O.P.No.689 of 1998, on the file of the Motor Accidents Claims Tribunal-cum- II Additional District Judge, West Godavari at Eluru, dated 28.08.2003. 2. The claimant/appellant is a coolie by profession and was travelling along with six others on 24.07.1998 in lorry No. AEP 222 driven by the first respondent rashly and negligently and the lorry turned turtle near Chagallu. The claimant sustained bleeding injuries and one of the passengers died. The claimant also suffered a fracture on the left hand and hence, he sought for a compensation of Rs.50,000/- from the driver, owner and insurer of the lorry. 3. While the claim against the first respondent/driver was dismissed, the second respondent/owner remained ex parte before the Tribunal. The third respondent/insurer contested the claim contending that there was violation of the conditions of the policy and the lorry driver had no effective valid driving licence. The lorry also had no route permit or fitness certificate and the other allegations of the claimant were also denied. 4. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant for compensation and examined P.W.1 and R.W.1 and marked Exs.A- 1 to A-3 and B-1 to B-3 during the enquiry. 5. The Tribunal rendered the impugned award firstly relying on Ex.B-3-Charge Sheet to conclude that the first respondent was prosecuted for the rash and negligent acts by the Investigating Agency probablising that the accident occurred due to the rash and negligent driving of the lorry driver. The Tribunal noted the evidence of the injured P.W.1 to have corroborated Ex.B-3. The Tribunal assessed the compensation at Rs.2,000/- towards loss of earnings, Rs.1,000/- towards transport, Rs.35,000/- towards pain and suffering, mental agony, continuing or permanent disability and medical expenses, etc. The Tribunal made the total compensation of Rs.38,000/- carry interest at 12% per annum and proportionate costs. The Tribunal considered that the First Information Report-Ex.A-1 and the Charge Sheet-Ex.B-3 prove that the claimant was travelling in the lorry as an unauthorized passenger and in view of the decision reported in 2002 (4) Decisions Today (S.C.) 71, the insurer is not liable to compensate the death or bodily injury to unauthorized passengers. Consequently, the claim was upheld only against the owner of the vehicle, the second respondent. 6. The claimant filed the present appeal contending that the Motor Accidents Claims Tribunal-cum-I Additional Judge, West Godavari at Eluru, allowed O.P.No.688 of 1998 arising out of the same accident against even the insurer also and in the present case also, a similar result should have followed. 7. Sri B. Parameswara Rao, learned counsel for the appellant is heard. 8. The findings of the Tribunal about the responsibility of the lorry driver for the accident with his rash and negligent driving, the ownership of the lorry with the second respondent, the assessment of the quantum of compensation and the dismissal of the claim against the first respondent/driver for default have become final and the only question that is to be adjudicated in the present appeal is about the liability of the third respondent/insurer. 9. Even assuming that in any claim including O.P.No.688 of 1998 adjudicated by the appropriate Motor Accidents Claims Tribunal, the claim against the insurer was upheld arising out of the same accident, it will neither be res judicata nor estoppel in determination of the present claim on merits. The oral and documentary evidence produced by the parties in their respective claims would be the basis for the conclusions of fact or law by the Tribunal and there is nothing on record to show that the award in O.P.No.688 of 1998 should result in an inevitable consequence of allowing this claim also against the insurer. 10. The Tribunal very relevantly extracted the contents of Ex.A-1-First Information Report in which the claimant himself stated that after his duty was over, he and some others boarded the said lorry to go to his native place and also the contents of Ex.B-3-Charge Sheet in which the independent statutory Investigating Agency stated that in order to go to their village, the claimant and other persons boarded the lorry and sat on the metal load. The contents of the First Information Report and Charge Sheet, thus, probablise that the claimant would have travelled on the lorry in question only as an unauthorized passenger and the refusal of the Tribunal to fasten the liability to the insurer is based on the binding principles laid down by the Apex Court in this regard. The impugned award, therefore, cannot be faulted and the appeal has to fail. 11. Accordingly, the Civil Miscellaneous Appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 24th February, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4706 of 2003 Date: 24th February, 2011 KL