T HANUMANTHA RAO Vs. MOTESPALLI VENKATARATNAM

JUDGEMENT

(1.) Appellants, who are the parents of Thota Satish (the deceased) aged about 12 years, filed a claim petition seeking compensation of Rs. 1,00,000.00 from the respondents who are the driver, owner and insurer, respectively, of the lorry bearing No.AP-16-U-8239, alleging that when they and their three children including the deceased were standing at Hanuman Junction, first respondent (driver of the offending lorry) engaged them to unload the goods being transported in the lorry at Anakapalli and so they boarded the lorry as coolies to unload the goods being transported in the lorry and on the way to Anakapalli the deceased, due to the rash and negligent driving of the first respondent, was thrown out of the body of the lorry and died and so they are entitled to the compensation claimed. Respondents 1 and 2 chose to remain ex pane. Third respondent filed a counter inter alia contending that it is not liable to pay any compensation to the appellant because appellants and the deceased were travelling as passengers in a goods vehicle. In support of the case of appellants, first appellant was examined as P.W.I and Exs.A.1 to A.3 were marked. On behalf of the third respondent, one witness was examined as R.W.1 and Exs.B.l and B.2 were marked. The Tribunal after having held that the accident occurred due to the rash and negligent driving of the lorry by the first respondent held that appellants are entitled to Rs.62,000.00 from Respondents 1 and 2 only and exonerated the third respondent from liability because the deceased was travelling as passenger but not as an employee or the owner of the goods being transported in the offending vehicle. Dissatisfied with the compensation awarded to them and aggrieved by the Tribunal exonerating the third respondent from liability, claimants preferred this appeal.

(2.) The point for consideration is to what compensation are the appellants entitled to and against whom?

(3.) The contention of the learned Counsel for the appellants is that since the deceased and the appellants were travelling as coolies in the lorry, they are covered by Ex.B.l policy and, so, the Tribunal was error in not fastening the liability against third respondent also. He contends that since the deceased was an earning member, the Tribunal ought to have granted the entire compensation sought by them to the appellants. He relying on National Insurance Co., Ltd. v. Baljit Kaur and others, 2004 (1) ALD 98 (SC) = 2004 ACJ 428, contends that in any event third respondent can pay the compensation payable to the appellants and recover the same from second respondent, the owner of the lorry. The contention of the learned Counsel for third respondent is that since the deceased was aged 12 years and since the F.I.R. and the charge-sheet show that the appellants boarded the lorry along with the deceased and others in the midway, the finding of the Tribunal that they were passengers in the lorry cannot be said to be erroneous and so there are no grounds to interfere with the award of the Tribunal.