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Judgment
A.S. Pachhapure, J.—Though the matters are listed for admission, with the consent of the learned counsel for both the parties, they are taken up for final disposal.
The appellant-insurer has challenged its liability to pay the compensation for the injuries sustained by the 1st respondent in each of these appeals in an accident that occurred on 02.08.2007.
The facts reveal that on the aforesaid date, respondents No. 1 in MFA Nos. 31069/2012, 31070/2012, 31072/2012, 31073/2012 and 31074/2012 were proceeding in the lorry bearing Reg. No. KA-28-3762, whereas the 1st respondent in other cases were travelling in the bus bearing Reg. No. KA-32-F-1082. Near Alagur village of Jamkhandi Taluk, the lorry was driven in a rash and negligent manner and it hit the bus, which was coming from the opposite direction. In the said accident, the aforesaid persons sustained severe injuries and were treated in the hospital. They suffered disability and therefore made claims for compensation for pain, suffering, mental agony, medical expenses etc.
The appellant herein who is the insurer of the lorry filed its written statement alleging the rash and negligent act on the part of the driver of the KSRTC bus and it was also its contention that under the terms and conditions of the policy, it has no liability to pay the compensation. So also it contended that the inmates of the lorry were unauthorised passengers and therefore, there is no liability on the insurer to indemnify them. The owner of the bus contended that the accident was solely due to the rash and negligent driving of the lorry by its driver.
The Tribunal framed the issues and clubbed all the cases, permitting the parties to produce common evidence. Accordingly, the claimants examined PWs. 1 to 13. In their evidence, Exs. P1 to P47 were marked. RWs. 1 and 2 were examined on behalf of the respondents in the Tribunal and in their evidence, ex. R1- the insurance policy was marked.
The Tribunal, after hearing the learned counsel and on appreciation of the evidence on record allowed the claim petitions, holding the appellant-insurer liable to pay the compensation with interest. Aggrieved by the liability that was imposed on the insurer, the present appeals have been filed.
I have heard the learned counsel for both the parties.
Learned counsel for the appellant would contend that there was a head on collision of both the vehicles and therefore, he submits that the Tribunal committed an error in holding the appellant-insurer exclusively liable for the negligence. So also it is his submission that the driver of the lorry had permitted to carry the cattle which is prohibited in law and therefore, he submits that the insurer is not liable to indemnify the claimants, who were travelling in the lorry unauthorisedly. Hence, he submits that the judgment and award impugned are liable to be set aside. On the other hand, learned counsel for the respondents supports the judgment and award of the Tribunal.
Ex. P1 is the FIR and Ex. P2 is the copy of the complaint. The scene of occurrence mahazar has been produced at Ex. P3 and copy of the charge sheet has been produced at Ex. P5 Perusal of these documents would reveal that the complaint of rash and negligent driving was only against the driver of the lorry and not the bus. The charge sheet was also filed against the driver of the lorry. All the witnesses who were inmates of both the vehicles in their evidence have also said that the lorry driver was negligent and is responsible for the occurrence of the accident. Ex. P7 is the certified copy of the order sheet in CC No. 506/2007. It reveals that the driver of the lorry pleaded guilty. So in addition to the admission of the driver of the lorry, there is oral evidence, which would reveal that the accident was solely due to the rash and negligent driving of the lorry and therefore, the finding arrived at by the Tribunal is just and proper.
So far as the liability is concerned, perusal of the written statement would reveal that there is a general denial of the liability of the insurance company on the ground that the policy conditions have not been complied. No specific contention has been raised in the written statement that carrying the live stock was not permitted and the prohibition has been contravened by allowing the cattle to be taken in the lorry. In the absence of a specific plea in the written statement, I do not think that such a contention could be raised. That apart, the insurer has examined RW 1, an official of the insurance company and even the perusal of his evidence does not reveal such a fact. No such contention was also raised by the counsel for the appellant in the Tribunal. In the absence of a specific plea, the other parties will not have an opportunity to over come such contention and therefore, for the first time in the absence of any plea in the written statement, such contention cannot be raised even in this appeal as well.
Perusal of the complaint at Ex. P2 would reveal that the inmates of the lorry were carrying their cattle in the said vehicle and to have a safety of the cattle while transporting, it appears that they also accompanied the cattle by travelling in the lorry. Therefore, they are the owners of the goods ''and have a right to claim compensation even against the insurer.
In the aforesaid circumstances, the Tribunal was justified in directing the appellant-insurer to indemnify the injured claimants. Considering the submissions made by the learned counsel for the appellant, I do not find any merit in these appeals. Accordingly, the appeals are dismissed. No costs.
The amount in deposit be transmitted to the Tribunal.
After the payment of the amount of compensation to the claimants, excess if any, shall be refunded to the appellant-insurer.