MALLAMMA Vs. MAHABOOB

JUDGEMENT

(1.) THESE appeals arise out of a common judgment and consequential awards passed by the learned member, Motor accident Claims Tribunal-II (for short 'the tribunal') Chitradurga, whereby the claim petitions have been rejected.

(2.) THE appellants' filed claim petitions before the tribunal under Section 166 of the motor Vehicles Act, 1988, (for short 'the act' ). The appellants are either the injured persons or the legal representatives of the deceased, who had gone to coolie work in davanagere or in Nittur village and had boarded lorry bearing Registration No. CNT-8786 on 8-6-1995 at Davanagere, to return to their villages, namely Chinnobanahally or hirehally along with their paddy bags by paying in all Rs. 1,100/- as hire charges to the driver of the said lorry and when the said lorry was going near Lokikere cross, its driver drove the same at high speed in rash and negligent manner, as a result of which, the lorry toppled down and capsized and the accident took place, as a result of which, few persons travelling in the lorry died and the others sustained grievous injuries, who were all shifted to the district Hospital Chitradurga, wherein they took treatment. The said lorry belonged to the first respondent arid the same was insured by the second respondent. According to the appellants, in view of the actionable negligence on the part of the driver of the lorry and the resultant loss to them, the respondents are liable to pay the compensation. The driver of the lorry was impleaded in review petitions. However, he was subsequently given up. Though the 1st respondent - owner of the lorry entered appearance through an advocate, he has not filed objections to. the claim petitions. The second respondent-Insurance company has filed objections inter-alia contending that, the injured petitioners and the deceased were travelling in the lorry as unauthorized or gratuitous passengers; the accident was not due to the rashness or negligence of the driver; the vehicle was a goods vehicle and the passengers were not entitled to travel or to be carried in the vehicle; the lorry though was insured by it, the same was subject to the condition that the vehicle shall be used as private goods carrier with liability of the insurance company to indemnify the third party, driver, third party property damage and the said policy did not cover the risk of unauthorized or gratuitous passengers and therefore the petitioners cannot claim any compensation from it.

(3.) BASED on the pleadings of the parties, the issues, which are more or less similar in nature, were framed separately in all the petitions. Some of the petitioners got themselves examined as P. Ws. 1 to 9 and Ex. P-1 to Ex. P-68 were marked. The owner of the vehicle did not cross-examine P. W. 1 to P. W. 9 and did not get himself examined nor lead any other evidence. On behalf of the second respondent-Insurance Company, R. W. 1 deposed and Ex. R. 1 and Ex. R. 2 were marked. After appreciation of the evidence on record with regard to issue No. 1 in all the claim petitions, the tribunal has held that, the accident in question has occurred due to rashness and negligence of the driver of the lorry, resulting in injuries to many persons and death of few persons.