Insurer also held liable for payment of compensation.

E.PADMANABHAN, J.

1. The appellants herein have preferred the present appeal as against the award and decree dated 1.10.01 passed in MCOP No.213/98 on the file of the Motor Accident Claims Tribunal (Principal District Judge of Kanyakumari) at Nagercoil, insofar as the Tribunal below exonerated the insurer of the vehicle and dismissing the claim against the insurer.

2. Heard Mr.S.Subbaiah, learned counsel appearing for the appellants and Mr.K.Kannan, learned counsel appearing for the 3rd respondent, insurance company. With the consent of either side, the appeal itself is taken up for final disposal.

3. The appellants herein instituted MCOP No.213/98 claiming a compensation of Rs.5,05,000/= respectively against the driver owner and insurer of the maxi cab bearing Regn. No. TN-63-3829. According to the appellants, on 24.8.98 at about 7.30 a.m., the deceased C.Subramoni was proceeding on his motorcycle near Srilekmipuram. The first respondent, driver of the maxicab, drove the cab rashly and negligently, hit against the deceased causing head injuries and the motor cyclist, Subramoni, died on the spot. The deceased was working as a carpenter at Sivakumari Timber Depot, Anjugramam, drawing a salary of Rs.3,000/= per month. The deceased was aged 34 years and a healthy man. The deceased was the only bread winner of his family living with his young wife and three minor children. The first appellant is the widow, appellants 2, 3 and 4 are the minor children, respectivley aged 24, 7, 4 and 3 years. For the fatal accident, the appellants claimed Rs.5,05,000/= under various heads.

4. The insurer filed a counter denying the liability as well as denying the accident. The 3rd respondent, insurer contended that it is the deceased, who drove the motorcycle rashly and negligently at the time of the accident, dashed against the maxi cab and sustained multiple injuries. The deceased alone was negligent. The claimants were called upon to prove the age, income, occupation and status of the deceased. It is contended that the Mahindra Maxi cab even at the time of the accident was driven by a person, who was not having a valid driving licence to drive a maxi cab, besides the vehicle was plying without fitness certificate. The Regional Transport Officer has levied a fine of Rs.1,000/= on the report of the Motor Vehicles Inspector on 25.8.98 for the said violation. As per the proceedings of the Regional Transport Officer, Nagercoil, the maxi cab was released on 12.9.98. The owner has violated the policy conditions and the vehicle is not fit to ply on the road and, consequently, the insurer is not liable to pay compensation.

5. The claimant examined three witnesses and marked Exs.P1 to P-9. The driver and the vehicle owner/respondents 1 and 2 absented themselves and the insurer alone contested the claim. The insurer examined two witnesses and marked Exs.R-1 to R-4.

6. The Tribunal below framed the following only point for consideration :-

"Whether the claimants are entitled to claim compensation ? If so, how much ?"

7. The Tribunal below rendered a finding that the accident has been caused by the rash and negligent driving of the maxi cab driver, while accepting the appellants' case in this respect. The Tribunal below assessed the compensation payable at Rs.3,36,000/= against respondents 1 and 2 and dismissed the claim petition as against the insurer of the maxi cab. The Tribunal recorded a finding that the first respondent driver has no valid licence to drive the maxi cab and the vehicle did not have a fitness certificate. Therefore, the insurer is not liable and it is the driver and the owner of the vehicle alone, who are held liable to pay the compensation. As against the said award of the Tribunal below, exonerating the insurer of the vehicle the claimants alone have preferred the present appeal.

8. Mr.S.Subbaiah, learned counsel appearing for the appellants submitted that he is not challenging the quantum of compensation awarded, but contends that