The court's discretion to direct the insurance company to pay compensation and recover from the owner and driver in cases of breach of contract of insurance depends upon the facts and circumstances of each case.

JUDGMENT :

U. DURGA PRASAD RAO, J.

1. Challenge in this appeal is the award dated 02-06-2008 in O.P. No. 327 of 2005 passed by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, West Godavari at Eluru (for short "the Tribunal) whereunder the Tribunal in respect of death of one Karimella Narasimhacharyulu @ Narasimhamurthy (hereinafter "the deceased") in a motor vehicle accident has granted compensation of Rs. 2,97,000/- against respondents 1 and 2 and dismissed the claim against the third respondent i.e. New India Assurance Company Limited. Hence, the instant MACMA by the claimants, who are L.Rs. of the deceased, to grant decree against the third respondent/Insurance company also.

2. Factual matrix of the case is thus:

(a) Claimants 1 and 2 are wife and son of the deceased. Respondents 1 to 3 before the tribunal are: driver, owner and insurer of the auto bearing No. AP 37W 2729.

(b) The case of the claimant is that on 30-09-2004 when deceased, his wife and his brother's son viz. K. Appalachari were travelling in auto bearing No. AP 37W 2729 from Agadalalanka village of Bhimadolu Mandal in West Godavari district to go to Bhimadolu and on the way when the auto reached Gundugolanu bridge at 4.30 P.M. the first respondent drove the auto at a high speed and in a rash and negligent manner and dashed its front motor cycle bearing No. AP 37 AC 950 and due to impact of the hit their auto turned turtle and claimants and deceased fell down and suffered injuries. They were shifted to Government Head Quarters Hospital, Eluru by the High way patrolling party. However, the deceased succumbed to injuries on the way to hospital. It was attributed that accident was occurred due to the fault of first respondent. It was further averred that deceased was aged 50 years and doing carpentry work and earning Rs. 4,000/- per month and in his death they lost their fender. On these pleas claimants filed O.P.No.327 of 2005 against respondents 1 to 3 and claimed Rs. 3 lakhs as compensation.

(c) Respondents 1 and 2 mainly contended that the accident was occurred not as pleaded by the claimants. Their contention is that the back tyre of the auto was punctured and hence the first respondent kept his auto on the left side of the road near Gundugolanu bridge and went in search of vulcanizing shop and in the meanwhile, the deceased and others who were going on the road seeing some buffaloes came in opposite direction started running and came by the side of auto and in the meantime, the said buffaloes came and dashed the auto and as a result auto fell on the southern side and the deceased who happened to be by the side of the auto received grievous injuries and subsequently died. Thus, R1 and R2 denied the manner of occurrence of accident as pleaded by the claimants. They also denied the age, avocation and income of the deceased and contended that the deceased was 70 years old and sickly person and since 10 years prior to the accident he was not doing any work and depending on his son.

(d) Whereas the third respondent contended that the accident was occurred due to collusion between the two vehicles. Hence, the owner and insurer of the motor cycle are also responsible and OP was bad on account of non-joinder of parties. R3 also denied the case of the claimants and urged to put them strict proof of petition averments. R3 further pleaded that claimants shall prove that the first respondent was having valid driving licence to drive the auto. Thus all the respondents prayed for dismissal of OP.

(d) During trial P.Ws.1 and 2 were examined and Exs.A1 to A7 were marked on behalf of claimants. First respondent was examined as R.W. 1. On behalf of R3/Insurance Company, R.Ws. 2 and 3 were examined and Exs.B1 and B2 were marked.

(f) A perusal of the award shows that the Tribunal having relied upon the eye-witness account of P.Ws.1 and 2 who were the victims of the accident coupled with documentary evidence Ex.A1-FIR, Ex.A2-MV Inspector's report and Ex.A4-charge she