ORIENTAL INSURANCE CO LTD Vs. BHAIGA PRADHAN

JUDGEMENT

(1.) AGGRIEVED by the order dated 22.9.1999 of the Member, 2nd Motor Accidents Claims Tribunal (S.D.), Berhampur, in M.A.C. No. 118/94(39/94), the appellant -Insurance Company has filed this appeal.

(2.) THE fact of the case, in brief, is that on 2.9.1998 at about 10.30 P.M. while one Satyanarayan Pradhan (hereinafter referred to as the 'deceased') was travelling in the Trekker bearing Registration No. OSG 7680 as a passenger, due to rash and negligent driving of the driver, he fell down and succumbed to the injuries. The claimants, who are the parents of the deceased have filed the claim petition for compensation. The owner of the offending vehicle contested the case denying the allegation. He has taken the stand that the vehicle was insured with the appellant and there was valid driving licence. The Insurance Company filed written statement and took the stand that the deceased was not a passenger, but the helper of the vehicle and, therefore, the policy does not cover the risk and, hence, the appellant is not liable to pay compensation. Upon hearing the parties and taking into account the evidence on record, the learned Tribunal awarded Rs. 75,000/ - as compensation to the petitioners with interest at the rate of 9% from the date of application.

(3.) MR . A. K. Mohanty, learned counsel forthe appellant -Insurance Company, strenuously contended that upon a glimpse on the evidence on record, it would be crystal clear that the deceased, at the alleged time of accident, was travelling as a helper of the offending trekker, but the respondents have tried to shift the burden on the appellant -Insurance Company by taking a stand that the deceased was a passenger in the said vehicle. The learned Tribunal taking a lenient view considered that since the deceased was travelling as a passenger in the offending trekker at the material time of the accident, the appellant -Insurance Company is liable to pay the compensation, which finding of the Tribunal is based on no evidence on record. He further contended that a helper in a trekker is not covered under the policy issued to the respondent No. 3 -owner. His further submission is that the driver of the trekker at the alleged time of accident was neither possessing a valid and effective driving licence to drive a passenger carrying vehicle nor issued with any P.S.B. badge. Counsel for the respondents 1 and 2 submitted that the deceased was working as a mechanic near his village which was admitted by P.W. 2, a co -passenger of the deceased and P.W. 1, father of the deceased. He further submitted that the scribe of the FIR was not examined by the Insurance Company nor the I.O. has examined the scribe and, therefore, the finding of the learned Tribunal that the deceased was travelling as a passenger is justified. He also submitted that the present appeal is not maintainable as per law in absence of specific permission from the Tribunal. Mr. Mishra has vehemently submitted that the Insurance Company had never pleaded that there was collusion between the claimants and the owner.