( 1 ) BEING aggrieved by the award dated 22. 12. 1997 passed by the Motor Accident Claims Tribunal (District Judge) Udagamandalam in M. C. O. P. No. 72 of 1993 the insurer has filed the above appeal.

( 2 ) THE case of respondents 1 and 2 / claimants, who are the parents of the deceased Arul @ Arulselvam, is as follows: the aunt of the deceased engaged a lorry bearing Registration No. TDS 4147 for transporting her household articles from Coonur to Annur. The deceased as custodian of the household articles loaded the articles in the lorry and travelled in the said lorry as a non-fare passenger. He was seated beside the driver in the cabin of the said lorry. The second respondent was the owner of the lorry and the lorry was driven by the first respondent-driver and the lorry was insured with the appellant herein. While the lorry was proceeding to Annur it went out of control due to rash and negligent driving of the driver and capsized at about 8. 30 pm on 01. 09. 1992 at Gurrency-Coonur Road. The deceased was caught under the front side door of the said lorry and sustained multiple injuries including head injuries and died on the spot. The deceased was aged about 27 years and was self-employed as a dealer in Automobile spare parts and was earning income of Rs. 2,500/- per month. The claimants/ respondents 1 and 2 herein were depending upon their son. The second respondent as the owner of the lorry and the appellant as the insurer are liable to pay the compensation. The claimants claimed a sum of Rs. 3,00,000/- as compensation.

( 3 ) THE first respondent-driver and the second respondent-owner of the lorry remained exparte.

( 4 ) THE appellant herein who was the third respondent before the Tribunal alone contested the claim petition by filing a counter statement containing the following averments: the appellant denied the allegations contained in the claim petition and contended that the accident was not due to any rash and negligent driving of the lorry driver but owning to the circumstances beyond the control of the driver; the age, income and employment of the deceased was not admitted; the deceased was accompanying the goods as non-paying passenger and as such the insurer is not liable to pay any compensation; the driver was not possessing an effective valid driving licence; the terms of the policy has not been complied with and therefore the insurer is not liable to pay any compensation.

( 5 ) BEFORE the Tribunal, the second respondent was examined as P. W. 1 and one Subramania Chettiyar was examined as P. W. 2 and Exs. P-1 to P-5 were marked. On the side of the respondents one Aravind Ponnaiya was examined as R. W. 1 and no documents were marked on their side. On a consideration of the evidence on record the Tribunal held that the accident occurred only due to the rash and negligent driving of the lorry by the first respondent-driver and awarded a total compensation of Rs. 2,20,000/- with 12% interest per annum. The above appeal is directed against the said award.

( 6 ) THE appellant has filed C. M. P. No. 3565 of 1999 under Order 41 Rule 2 of the Code of Civil Procedure to raise additional grounds and C. M. P. No. 19696 of 2000 under Order 41 Rule 27 of the Code of Civil Procedure to raise additional evidence by producing the Investigation Report dated 28. 09. 1998 as Annexure-A and claim petitions in M. C. O. P. Nos. 110 and 111 of 1992 on the file of the District Court, Nilgiris at Udagamandalam as Annexures-B and C. In the affidavit filed in support of the above said petitions it is stated that when the appellant tried to contact the owner of the lorry involved in the accident in order to enable them to prosecute the appeal along with it, it came to the knowledge of the appellant that the deceased in the accident, in respect of whose death the claim petition was filed, was himself the owner of the lorry. Suppressing the said fact and by impleading the fourth respondent as the owner of the lorry and by deliberately pl

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