AI Structured Summary
Not yet generated for this judgment
Judgment
N.K. Patil, J.—This appeal by the owner is directed against the judgment and award dated 16th December, 2013 passed in M.V.C. No. 1032/2010, by the II Additional District Judge, Member, MACT-III, D.K., Mangalore, (for short, ''Tribunal'') for setting aside the said judgment and award passed by Tribunal, on the ground that the appellant is not liable to indemnify the award amount.
The respondents 2 to 4 are none other than the wife and children of the deceased Ibrahim. They filed the claim petition under Section 166 of the Motor Vehicles Act, claiming compensation against the appellant/owner and also the insurer of the offending vehicle, on account of the untimely death of Ibrahim.
The accident occurred at about 7:30 A.M., on 15-03-2010, when the deceased, after loading raw fishes in the Rickshaw tempo bearing Registration No. KA-18/TR-1226-09-10 (temporary registration), proceeding from Dakke Mangalore to Vamanjoor, and when the said Goods Autorickshaw reached near KMC quarters at Light Hill road, the driver of the autorickshaw lost control over the same and it capsized. Due to the impact, the deceased sustained fatal injuries and immediately he was shifted to KMC Hospital at Mangalore, but in spite of treatment, he succumbed to the injuries on 28-03-2010.
It is the case of the claimants before the Tribunal that, on account of the death of the deceased, they have lost the only bread winner in the family and also the future hopes and aspirations in life and therefore, they have to be compensated reasonably.
On account of the death of the deceased in the road traffic accident, the claimants filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs. 25,00,000/- against the appellant/owner and insurer of the offending vehicle. The said claim petition had come up for consideration before the Tribunal on 16th December, 2013. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 4,31,000/- under different heads, with interest at 6% per annum from the date of petition till the date of realization. Being aggrieved by the liability fixed on the part of the appellant/owner of the offending vehicle, the appellant is in appeal before this Court, seeking to set aside the same and to allow this appeal.
I have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the appellant/owner of the offending vehicle, for quite some time.
Learned counsel appearing for appellant/owner of offending vehicle, Smt. Sandhya Rao P., submits that, the Tribunal grossly erred in directing the appellant/owner of the offending vehicle to indemnify the award amount with interest. The said direction cannot be sustained and is liable to be set aside at the threshold. To substantiate the said submission, she has taken me through Ex. R1-authorization letter, Ex. R2 - copy of Insurance Policy and Ex. R3 - xerox copy of R.C. Book and pointed out that the vehicle in question was duly insured with the insurer and the policy was valid and in force, as on the date of accident. But, the Tribunal has proceeded only on the basis of the contents of Ex. P1-FIR and Ex. P2-complaint and come to the conclusion that the deceased was travelling in the goods auto, which was driven by one Nazeer and that the risk of such passengers who are unauthorizedly traveling in the goods auto, which has the seating capacity of only one, is not covered by the said policy and accordingly, fastened the liability on the appellant, being the owner of the goods auto. The same cannot be sustained and is liable to be modified, by fastening the liability on the insurer of the offending vehicle as the policy was very much in force.
After perusal of the impugned judgment and award passed by Tribunal including the entire material available on file and after hearing the learned counsel for appellant/owner, I am of the view that, the Tribunal, after assessing the oral evidence of P.Ws. 1 to 3 and RWs 1 and 2 and documentary evidence available on file at Exs. P1 to P14 and Exs. R1 to R3, has rightly awarded compensation of Rs. 4,31,000/- on account of the death of the deceased Ibrahim, aged about 52 years and directed the appellant/owner of the offending vehicle to indemnify the said award with interest.
It is significant to note that the FIR which was filed at the initial stage is marked as Ex. P2 and it shows that the informant Hanif along with deceased Ibrahim and Abdul, Hameed and Yusuf were traveling in the goods auto and one Nazeer was driving the vehicle. Therefore, the Tribunal came to the conclusion that the apart from the driver Nazeer, there were five persons who were traveling in the goods auto and by no stretch of imagination, it could be said that the risk of such passengers who are unauthorizedly traveling in the goods auto, which was having seating capacity of only one, was covered under Ex. R2- insurance policy.
It is further significant to note that even though the risk of owner of the goods is to be covered as per Section 147 of the Motor Vehicles Act, taking into consideration the seating capacity of the particular vehicle and also the capacity in which he was traveling and also the fact that in the present goods auto, except the driver, no one else is permitted to be carried either as a coolie or owner of the goods, the Tribunal rightly held that the deceased was traveling in the goods auto unauthorizedly and his risk was not covered by the Insurer under Ex. R2 and therefore, the Insurer is not liable to pay any compensation to the claimants and it is only the appellant/owner of the offending vehicle, who is liable to indemnify the award with interest.
The said reasoning given by Tribunal is just and proper and does not call for interference, nor the appellant/owner has made out a case for entertaining this appeal.
For the foregoing reasons, the appeal filed by the appellant/owner is liable to be dismissed as devoid of merits. Accordingly, it is dismissed.
The amount in deposit by the appellant/owner before this Court is directed to be transmitted to the jurisdictional Tribunal, forthwith.
In view of disposal of the appeal on merits, I.A. No. 1/2014 for stay does not survive for consideration and is accordingly, disposed of as having become infructuous.
Office to draw award, accordingly.