(BY SRI.N.GOPALKRISHNA, ADVOCATE) v. REP. BY ITS MANAGER

(BY SRI.N.GOPALKRISHNA, ADVOCATE) … APPELLANT AND:

#1. I. S. FAYAZUDDIN, S/O.IQBAL SAB, MAJOR BY AGE, Residing AT NO.1/33, RAMAKUPPAM, PALAMANER TALUK, CHITTOOR DISTRICT, ANDHRA PRADESH. -- - 2 -

#2. NEW INDIA ASSURANCE CO. LTD., 4TH FLOOR, TOWER BLOCK, UNITY BUILDING, J.C.ROAD, BANGALORE-02, REP. BY ITS MANAGER. ...RESPONDENTS (BY SRI.M.NARAYANAPPA, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.03.2007 PASSED IN MVC NO.1231/2006 ON THE FILE OF THE XIV-ADDL. METROPOLITAN AREA, BANGALORE, (SCCH NO.10), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Though this matter is listed for orders regarding furnishing of the copy of the paper publication in respect of service of notice of appeal on respondent No.1, by consent of Advocates appearing on both sides, the matter was heard on merits, having regard to the short ground urged in the appeal memorandum.

#2. The appellant who is the claimant before the Tribunal, filed claim petition under Section 163-A of the -- - 3 - M.V. Act seeking compensation for the death of her son– Ashok Reddy, in a motor vehicle accident that occurred at about 10:00 a.m. on 04.09.2002.

#3. The Tribunal on assessment of oral and documentary evidence quantified the compensation payable at Rs.2,51,300/-. However, with regard to liability, the Tribunal held that since, the vehicle in question is a goods carriage and as the deceased was a unauthorised passenger in a goods vehicle, the insurer is not liable to indemnify the insured. In that view of the matter, the Tribunal exonerated the Insurance Company from its liability to indemnify the insured and fastened the liability only on the insured-owner of the vehicle. Being aggrieved by the said judgment of the Tribunal exonerating the Insurance Company from its liability, the claimant has presented this appeal.

#4. I have heard the learned counsel appearing for the appellant-claimant as well as the learned counsel -- - 4 - appearing for the respondent-Insurance Company.

#5. The learned counsel by producing a copy of the registration certificate in respect of the vehicle in question, contended that the vehicle is permitted to carry four persons, therefore, it is a passenger vehicle and not a goods carriage, as such the finding of the Tribunal exonerating the Insurance Company is perverse and is liable to set aside.

#6. Perusal of the records indicate that before the Tribunal, the insurer produced a copy of the policy as per Ex.R2. As could be seen from Ex.R2, the police was issued in respect of the goods carriage commercial vehicle. From Ex.R2, it is clear that the offending vehicle is a goods carriage and not a passenger vehicle. Even the copy of the registration certificate sought to be now produced by the learned counsel for the appellant-claimant clearly indicates that the vehicle in question is light goods carriage-three wheeler. The learned counsel wanted to relay on the -- - 5 - endorsement found on this the copy of registration certificate. according to which, the seating capacity is fixed at 4+1. At the first place, the genuineness of the said endorsement is not established. Secondly, merely because by virtue of the endorsement, seating capacity is fixed at 4+1. It does not have the effect of converting the light goods carriage into a passenger carrying vehicle. Even in a goods carriage certain categories of persons subject to a maximum mentioned in the permit are permitted to be carried. The only class of persons, who can be carried in the goods vehicle subject to a maximum, are the owner of the goods transported therein or his representative and the employees of the insured. Therefore, even that endorsement is presumed to be genuine, it would not establish that the vehicle in question is a passenger carrying vehicle.

#7. On the other hand, the certificate clearly indicates the class of vehicle as “LGC” (Light Goods Carriage) three wheeler. The insured has taken a policy of -- - 6 - insurance in respect of the said vehicle, which clearly indicates that the policy issued was for goods carrying commercial vehicle. Therefore, there is no force in the contention of the learned counsel for the appellant. The finding of the Tribunal that the deceased was an unauthorised passenger carried in the goods vehicle in question is in accordance with the evidence on record. Therefore, the Tribunal is justified in exonerating the Insurance Company from its liability. However, the Tribunal has held that the claimant is entitled to recover the compensation from the owner of the vehicle. Therefore, I find no merit in this appeal and accordingly it is dismissed. Vnp* Sd/- JUDGE