Not a fit case for invoking power under Order 41, Rule 33.

COMMON JUDGMENT:

A.S.VENKATACHALAMOORTHY, J.

The above Civil Miscellaneous appeals have been filed by the National Insurance Company Limited, represented by its Divisional Manager, Pudukkottai against the common award dated 22.4.1996 and made in MACT.O.P.No.1109 of 1992 and MACT.O.P.No.1112 of 1992 on the file of Motor Accident Claims Tribunal (IV Addltional Subordinate Court), Madurai. Hence both the above appeals can be disposed of by this Common Judgment.

2. The husband of the first respondent in C.M.A.No.150 of 1997 by name Subramani along with the first respondent in C.M.A.No.151 of 1997 by name Shanmugasundaram were proceeding by walk on 27.2.1991 at about 11.00 p.m. and when they reached the junction of new jail road and A.A. Road, the lorry owned by one Shanmugham (4th respondent and 2nd respondent respectively in C.M.A.150 and 151 of 1997), driven in a rash and negligent manner came from north to south and dashed against the said two persons, in which the Subramani died on the spot, while the other person by name Shanmugasundaram sustained grievous injuries.

3. Pleading as above, the heirs of Subramani viz., wife and two children filed M.A.C.T.O.P.No.1109 of 1992 claiming compensation to the tune of Rs.5,00,000/-. The injured Shanmugasundaram filed M.A.C.T.O.P.No.1112 of 1992 claiming compensation to the tune of Rs.50,000/-.

4. The appellant herein viz., National Insurance Company Limited resisted the petitions contending that at the relevant time, the person who drove the lorry was one Murugan and he was not the original driver of the Lorry and in fact, he had no licence at all to drive the vehicle. It is also pleaded that inasmuch as the owner of the Lorry entrusted the lorry to an unlicensed person, in violation of the terms and conditions of the Insurance Policy, the Insurance Company is not liable to indemnify in respect of any liability arising out of the accident.

5. Without prejudice to the said contention, the Insurance Company also disputed the occupation and monthly income of the deceased Subramani and contended that the claim of Rs.5,00,000/- is highly excessive. The Insurance Company further contended that in any event, if at all the heirs of Subramani are entitled to any compensation, the same will have to be paid only by the owner of the lorry.

6. So far as the claim made in M.A.C.T.O.P.No.1112 of 1992 by the injured Shanmugasundaram, the Insurance Company raised the same defence as in the other petition and also disputed the age of the Claimant Shanmugasundaram, his income and medical expenses, etc.

7. Before the Tribunal both the parties let in oral and documentary evidence. After duly considering the materials available on record, the Tribunal came to the conclusion that the accident took place only because of the rash and negligent driving of the lorry and that further held that both Insurance Company as well as owner of the lorry are liable to pay the compensation. The Tribunal fixed the compensation amount as Rs.1,32,200/- and Rs.41,800/- respectively in M.A.C.T.O.P.Nos.1109 and 1112 of 1992.

8. Before this Court, the learned counsel appearing for the appellant contended that the Insurance Company is not liable to pay the compensation since the lorry, at the relevant time, was not driven by its driver RW-1 and in fact, it was driven by RW-4, who was a mechanic, admittedly without a licence. According to the appellant, the Insured had committed specific breach of the provisions of the Motor Vehicles Act, in particular Section 147 and had also contravened the terms and conditions of the Policy, the contract of the insurance and as such the appellant cannot be saddled with liability for payment of compensation.

9. The learned counsel appearing for the owner of the lorry by name Shanmugam contended that he only handed over the lorry to the licenced driver viz., RW-1 and the said driver gave the vehicle to the mechanic RW-4 for repairs and only later on he was informed about this. Even according to h