NATIONAL INSURANCE COMPANY LTD Vs. AMBADAS SURYAKANTH GUTTEDAR

JUDGEMENT

(1.) THE insurer of the offending motor vehicle has called in question the judgment and award dated 24-5-2007 in M. V. C. No. 112/2004 on the file of the Prl. Civil Judge (Sr. Dn.) and MACT, Gulbarga, (for short 'mact' ).

(2.) ONE Parvati, along with her husband, while travelling in a lorry bearing Certificate of Registration No. KA-39/3299 to Bombay on 21-10-2003 along with their goods, at about 2. 30 a. m. on Solapur-Pune Highway, the driver of the said vehicle-the 4th respondent, herein, drove the same in a rash and negligent manner due to which the lorry turned turtle, fell into a ditch and both Parvati and her husband succumbed to grievous injuries and died on the spot. Respondents 1 and 2, son and daughter of the deceased Parvati along with their maternal uncle the Respondent No. 3 jointly preferred Claim Petition under Section 166 of the Motor Vehicles act, 1988 (for short the 'act') numbered as M. V. C. No. 112/2004 for rs. 9,15,000/- as compensation. The 5th respondent, herein, arraigned as 2nd respondent before the MACT, being the owner of the lorry, on notice opposed the claim by filing statement of objections, interalia, contending that the deceased was proceeding to Bombay with food grains and that the insurer-appellant, arraigned as Respondent No. 3 in the petition, was liable to answer the claim. The appellant too opposed the claim by filing statement of objections contending that the deceased was an unauthorised gratuitous and fare paying passenger, not covered by the policy of insurance and hence not liable to answer the claim. The MACT, in the premise of the pleadings of the parties, while framing issues, framed Issue No. 2 as follows: "whether the claimants are entitled for the compensation? If so, to what amount and from whom?

(3.) THE MACT recorded the deposition of Respondent No. 2-the 2nd claimant by name Mahananda, daughter of the deceased as PW-1 and marked 7 documents as Exhibits P-1 to P-7. For the respondent-appellant, one witness by name Maltesh was examined as RW-1 and a copy of the policy of Insurance was marked as Exhibit R-1. The MACT, considering all relevant material and appreciating the evidence both oral and documentary, recorded a finding in the affirmative over Issue No. 1 attributing actionable negligence to the driver of the lorry and awarded rs. 2,39,400/- as compensation fastening the liability to pay the compensation, as the deceased Parvati was travelling along with her goods, being the owner of the said goods, by the impugned judgment and award.