(Prayer: This M.F.A is filed Under Section 173(1) of MV Act against the judgment and award dated 07.11.2009 passed in Mvc.No.7995/2006 on the file of the MACT-V, Court of Small Causes, Bengaluru City, awarding a compensation of Rs.2,45,500/- with interest @ 6% p.a. On Rs.2,35,500/- from the date of petition till the date of deposit.)1. This appeal is filed by the Insurance Company challenging the judgment and award dated 7.11.2009, passed in M.V.C.No.7995/2006, on the file of the MACT-V, Court of Small Causes, Bengaluru ('the Tribunal' for short), questioning the liability.2. The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court.3. The factual matrix of the case is that on 04.09.2006 at about 7.00 p.m., when the petitioner was traveling in a tempo goods vehicle bearing registration No.KA-02-A-2183 from Bengaluru to Kunigal, near Surappanahalli, the driver of the tempo goods vehicle hit the tractor in a negligent manner due to which the petitioner sustained grievous injuries. Immediately she was shifted to Harsha Hospital and then to K.C. General Hospital and gave a complaint in that regard. Based on the complaint, a case was registered against the driver of the tempo.4. In pursuance of the claim petition, notice was issued against respondent Nos.1 and 2. Respondent No.1 remained absent and was placed exparte. Respondent No.2 - Insurance Company appeared through its counsel and filed the written statement denying the averments made in the claim petition. However, it admitted the issuance of policy in respect of goods tempo. The Insurance Company contended that the driver was not having valid driving licence and the liability is subject to terms and conditions of the policy. It is also contended that the petitioner admittedly was traveling as a passenger in a goods tempo and hence not entitled for compensation.5. The claimant in order to substantiate the claim examined herself as P.W.1 and examined other two witnesses as P.Ws.2 and 3 and got marked the documents at Exs.P.1 to 15. The respondents examined one witness as R.W.1 and got marked the policy as Ex.R.1.6. The Tribunal after considering both oral and documentary evidence placed on its record, allowed the claim petition in part granting compensation of Rs.2,45,500/- with interest at 6% per annum.7. Being aggrieved by the judgment and award of the Tribunal, the present appeal is filed by the Insurance Company contending that the Tribunal has committed an error in coming to the conclusion that the claimant was traveling along with goods without looking into the definition of 'goods' under Section 2(13) of the Motor Vehicles Act. The goods carried according to the evidence and pleadings is the cremation materials and that does not come under the definition of 'goods'. Hence, it requires interference of this Court.8. The learned counsel for the appellant Insurance Company reiterated the grounds urged in the appeal memo and contended that the vehicle in which the claimant traveled was a goods vehicle and there is no any mention of the claimant proceeding along with the goods either in the complaint or in any of the police records. It was only afterthought amended the claim petition that the claimant was proceeding along with cremation materials in order to fasten the liability on the Insurance Company. The very finding of the Tribunal that the claimant was proceeding as owner of goods is not correct and hence it requires interference of this Court.9. Per contra, the learned counsel for the claimant would submit that the claimant in order to substantiate the claim examined herself as P.W.1 and examined P.W.2, who witnessed the carrying of the cremation materials in the goods tempo by the claimant. When the vehicle met with an accident, P.W.2 himself shifted the injured claimant to the hospital and took the cremation materials in the ambulance. Hence, the finding of the Tribunal cannot be interfered with.10. Having heard the arguments of the learned counsel for the Insurance Company and also the learned counsel for the claimant and on perusal of the material available on record, the points that arise for the consideration of this Court are:(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company and it requires interference of this Court?(ii) What order?Point No.(i):11. Having heard both the respective counsel and on perusal of the material available on record, there is no dispute with regard to the fact that the claimant was traveling in a goods vehicle. The only question before this Court is whether she traveled along with the goods or she traveled as a passenger in the goods vehicle. In the claim petition dated 12.12.2006, a specific averment has been made in column No.22 that the petitioner was traveling in a tempo goods vehicle from Bengaluru to Kunigal. There is no averment in the original petition that the claimant traveled in the goods vehicle carrying the cremation materials. However, it is noticed that subsequently an amendment application was made and the claim petition was amended to the effect that the claimant was traveling in a tempo goods vehicle carrying the cremation materials. In column No.10 of the claim petition, it is mentioned that the claimant traveled from Bengaluru to Narayanapalya.12. The Insurance Company had filed the written statement on 27.8.2007 disputing the liability on the ground that the claimant traveled as a passenger in goods vehicle and hence the Company is not liable to pay the compensation.13. The claimant is examined as P.W.1. P.W.1 in the affidavit dated 14.10.2008 sworn to that she was traveling in a tempo goods vehicle from Bengaluru to Kunigal carrying cremation materials since her brother-in-law died at a hospital in Bengaluru on the same day and sent the dead body in an ambulance and after purchasing the bamboos, fire sticks and other cremation materials, she was traveling in the said vehicle. The witness was subjected to cross-examination.14. In the cross-examination, it is suggested that the tempo goods vehicle was not moving fastly, but as she was sitting on the edge of the vehicle by loading the cremation materials, due to her negligence the accident occurred. The said suggestion was denied.15. The claimant also examined one witness as P.W.2. P.W.2 in his affidavit states that he was traveling in the ambulance with the dead body of his co-brother from Bengaluru to Kunigal for performing cremation at Devaramallanayakanhalli. It is also his evidence that his sister-in-law Shanthamma buying the cremation materials like bamboo, fire sticks and other pooja materials was traveling in the matador 307 a goods vehicle bearing registration No.KA-02-AO-2183 from Bengaluru to Kunigal and at about 7.00 p.m., the said vehicle met with accident at Surappanahalli. Immediately he received the message from somebody and came back to Surappanahalli in the ambulance. Due to the accident, the claimant had sustained fracture and grievous injuries. Immediately he sent her to Harsha Hospital at Nelamangala for treatment. After that, he took the cremation materials like the bamboos, fire sticks and other pooja materials in the ambulance to the cremation place. P.W.2 was subjected to cross-examination.16. P.W.2 in the cross-examination admits that as there was no space in the ambulance, Shanthamma boarded the goods vehicle and she was sitting in the front portion of the goods vehicle. It was suggested that as there was no space for sitting in front portion of the goods vehicle, she herself fell down from the vehicle and sustained injuries. The said suggestion was denied. It was suggested that the petitioner was not carrying cremation materials in the goods vehicle. The said suggestion was denied.17. On the other hand, the respondents have examined one witness as R.W.1 and in the form of an affidavit R.W.1 reiterated the averments made in the objection statement that the vehicle is a goods vehicle and the petitioner traveled as a passenger. In the cross-examination, it is elicited that their investigator visited the accident place and he has not produced the report given by the Investigating Officer. It is suggested that in a goods vehicle, passengers can travel. The said suggestion was denied. It is suggested that along with the goods, passengers can travel, but there is a limitation to that effect and the said suggestion was denied.18. Having considered the material available on record and also the respective submissions of both the counsel, learned counsel appearing for the Insurance Company brought to the notice of this Court that there is no averment in the complaint that the injured was carrying the cremation materials in the vehicle.19. On perusal of the complaint, it is clear that the complaint is given by the driver of the other vehicle, i.e. the tractor. In the complaint he makes an allegation that the driver of the goods tempo came and hit the rare portion of the tractor. Hence, the Court cannot expect the specific averment with regard to carrying of the goods in the complaint given by the driver of the other vehicle.20. On perusal of the mahazar, which is marked as Ex.P.4, it is clear that there is no averment with regard to carrying of cremation materials. However, it is important to note that P.W.2, who is examined before the Court, categorically states that when he noticed the accident he shifted the injured to the hospital. He carried the goods in the ambulance in which he was taking the dead body, which the claimant was carrying in the goods tempo.21. The learned counsel for the claimant in order to substantiate the contention that there was a death in the family, has produced the document Ex.P.8 and the same discloses the date of death as 04.09.2006. It is also pertinent to note that though the respondents have disputed that no goods was carried in the goods vehicle by the claimant, while cross-examining P.W.1, the learned counsel for R.W.2 himself has suggested that the tempo goods vehicle was not moving fast, but as the claimant was sitting on the edge of the vehicle by loading cremation materials and due to her negligence the accident occurred. The suggestion itself discloses that after loading the cremation materials to the goods vehicle, the claimant was sitting on the edge of the vehicle and due to her negligence the accident occurred. The said suggestion is against the contention raised by the Insurance Company in the written statement and also in the evidence.22. The evidence of P.W.2 supports the case of the claimant that the claimant Shanthamma boarded the goods vehicle along with goods and in the cross-examination the learned counsel for the R.W.2 himself suggested to P.W.2 that there was no space in the ambulance and hence Shanthamma boarded the goods vehicle. Further, P.W.2 says that she was sitting in the front portion of the goods vehicle.23. Having taken note of the admission and suggestion made by learned counsel for R.W.2 that the claimant boarded the goods vehicle and loaded the cremation materials in the goods vehicle, the very contention that the claimant was not traveling along with goods and only traveled as a passenger, cannot be accepted. No doubt, the Tribunal while appreciating the material on record regarding considering the defence comes to the conclusion that the death certificate of his brother-in-law is produced and the same has not been disputed. The claimant was carrying the goods and she was going along with the goods is not disputed. Though it is disputed in the written statement and in evidence of R.W.1, a suggestion made to P.Ws.1 and 2 corroborates the case of the claimant that the claimant boarded the goods vehicle after loading the cremation materials. The respondents, except examining the official witness as R.W.1 in order to prove the defence that she was traveling as a passenger, no other material is placed. The defence remained as a defence. Even the Company's Investigating Officer is also not examined and also no suggestion was made to P.W.2 that
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he did not carry the cremation materials in the ambulance after the accident. Though R.W.1 claims that investigation is conducted through investigator, no such report is filed and got marked.24. The other contention of the counsel appearing for Insurance Company is that under Section 2(13) of the Motor Vehicles Act, the word 'goods' is defined and the goods carried is not within the definition. The said contention also cannot be accepted for the reason that the goods which was carried is bamboos and fire sticks and not personal belongings of the claimant and the same is carried for the purpose of cremation.25. In view of the categorical admission and suggestion, I do not find any error committed by the Tribunal in coming to the conclusion that the claimant traveled in the goods vehicle along with the goods and the Insurance Company has not proved the defence that the claimant traveled as a passenger. Hence, I do not find any reason to interfere with the order of the Tribunal to set aside the judgment and award of the Tribunal in coming to the other conclusion.26. In view of the discussions made above, I pass the following:ORDER(i) The appeal is dismissed.(ii) The amount in deposit, if any, be transmitted to the concerned Tribunal, forthwith.(iii) The Registry is directed to send the records to the concerned Tribunal, forthwith.