The main legal point established in the judgment is the application of the principle of 'pay and recovery' in directing the Insurance Company to pay the compensation amount to the claimants first and recover the same from the owner of the offending vehicle later.

JUDGMENT :

Heard the arguments of Sri P. Durga Prasad, learned counsel for the appellants/claimants and Smt. T.V. Sridevi, learned counsel for the respondent No.2/Insurance Company.

2. This appeal directed by the appellants/claimants challenging the Order and Decree dated 19.07.2013 passed in M.V.O.P.No.126 of 2011 by the Motor Accidents Claims Tribunal-cum-VI Additional District Judge, East Godavari District at Kakinada (hereinafter referred to "Tribunal").

3. Parties are referred to as they were arrayed in the proceedings before the learned Tribunal, for the sake of convenience.

4. The claimants filed petition under Section 166 of the Motor Vehicles Act, 1988 (for brevity "the Act") claiming compensation of Rs.4,00,000/- for the death of one P. Ganesh (hereinafter referred to "deceased") in a motor accident occurred on 26.03.2010.

5. The case of the claimants is that the 1st claimant is the wife; claimant Nos.2 to 4 are minor children and 5th claimant is the father of the deceased; the deceased was aged around 32 years and doing fish culture and earning a sum of Rs.8,000/- per month; on 26.03.2010 the deceased along with co-workers D. Dharma Rao and A. Rambabu boarded an auto bearing registration No.AP05 TT 8053 (hereinafter referred to 'offending vehicle) to go to Yanam for the purpose of procuring diesel oil and electrical goods for fish tank; they went to Yanam, purchased oil and electrical goods; the goods were loaded into the above goods vehicle auto; the deceased and two others were travelling in the same auto returning from Yanam to Kajuluru village; the auto reached a place near Vantithadi at about 1.20 PM; the driver of the auto (1st respondent) of the auto drove the vehicle in a rash and negligent manner; he applied sudden brakes to avoid collision with a she-buffalo coming across the road; as a result, the auto turned turtle; the deceased the who was sitting in the cabin, sustained multiple injuries and died on the spot; Gollapalem Police registered a case in Crime No.22 of 2010 for the offence punishable under Sections 304-A and 337 of the Indian Penal Code, 1860 (for brevity "IPC"); they conducted investigation and laid report (charge sheet) against the driver of the offending vehicle for the offence punishable under Sections 304-A and 338 IPC; the claimants are the dependants on the deceased and therefore, they filed the petition claiming compensation for the death of deceased in a motor vehicle accident.

6. The 1st respondent/owner-cum-driver of the offending vehicle remained ex parte.

7. The 2nd respondent/Insurance Company i.e., Insurer of the offending vehicle filed counter contending that the accident was occurred due to unavoidable circumstances and not due to rash or negligent driving of the offending vehicle; the offending vehicle is a goods carriage having seating capacity of one (01) only; the deceased and other persons are travelling in the goods vehicle are gracious passengers; the owner-cum-driver of the offending vehicle violated the terms and conditions of the policy; the 2nd respondent is not liable to indemnify the insurer since he violated the terms and conditions of the policy; the claim is excessive and exorbitant.

8. The learned Tribunal, basing on the rival contentions, framed the following issues for trial :

1. Whether the accident occurred due to rash and negligent driving of the auto bearing No.AP 5 TT 8053 by R-1, resulting death of the deceased?

2. Whether the petitioners are entitled to claim compensation, if so, to what amount and from whom?

3. To what relief?

9. During enquiry, on behalf of claimants, three (03) witnesses were examined as P.W.1 to P.W.3, respectively and six (06) documents were exhibited as Ex.A1 to Ex.A6. On behalf of the 2nd respondent/Insurance Company, two (02) witnesses were examined as R.W.1 and R.W.2, respectively and Ex.B1 to Ex.B4 and Ex.X1 to Ex.X3 documents are marked.

10. The learned Tribunal, basing on the evidence placed before it, on issue No.1 held that the acci