Prohibition against carrying passengers for hire or reward.

RAMANUJAM, J. :- This is an appeal filed by the United India Fire and General Insurance Co. Ltd., Madurai against the award passed by the Motor Accidents Claims Tribunal in M.A.C.O.P. No.36 of 1976, at the instance of the claimants-respondents 1 to 8 therein.

2. On 27-10-1975, one Alagappan aged about 32 years, who was a senior clerk of the State Bank of India, Kodaikanal, was returning from Madurai to Kodaikanal, in a car MDA 1194, which was owned by the 9th respondent and driven by the 10th respondent herein, At about 6 a.m. when the car was going in front of the Parayai Mills' gate in Samayanallur on the Dindigul main road, the driver of the car lost control of the vehicle and the car went to the left end of the road and hit against a tree and as a result of the impact, the gear rod caused grievous injuries on the stomach of Alagappan. He was immediately taken in a bus to the Government Hospital, Madurai where he died the next day. The said car had been insured with the second respondent (appellant herein) in the original petition before the Tribunal. On the ground that the said accident was due to rash and negligent driving of the car by its driver, the legal representatives of the deceased Alagappan claimed a compensation of Rs. 75,000, before the Motor Accidents Claims Tribunal, Madurai.

3. In the said claim petition respondents 1 and 3, owner of the car and the driver respectively, remained ex parte and the claim was resisted only by the Insurer, second respondent. The objection taken by the insurer was that it has been mentioned in the claim petition, itself that the car was used for carrying passengers on hire, which was against the terms of the insurance policy the insurer was not liable, that in any event, there was no rashness and negligence on the part of the driver of the car, that the car was proceeding slowly and cautiously on the proper side of the road at the moderate speed of 35 K.M. per hour that there was drizzling at the time and in a turning the car skidded to the left and hit against a tree and that, therefore, the accident cannot be said to be due to rashness and negligence on the part of the driver of the car. It also contended that since the injuries sustained by the deceased were very slight, the claim by the legal representatives of Alagappan for compensation of Rs. 75,000 is highly exaggerated.

4. After going through the counter affidavit filed by the Insurer, a reply affidavit was filed by the claimants, wherein they had again asserted that Alagappan, Arokiaswami and one Velusami travelled in the car on payment of Rs. 15 as hire charges. Further, they have stated that the deceased Alagappan was getting actually a salary of Rs. 1067 per month at the time of his death.

5. On these pleadings the following two points were set down for consideration by the Tribunal-

1. Whether the accident took place on account of rash and negligent driving of the first respondent's car by the third respondent?

2. Whether the petitioners are entitled to compensation, and to what extent and against whom?

6. On the side of the claimants, the first claimant had been examined as P.W. 1 and another person, who travelled in the car during the time of occurrence, had been examined as P.W. 2, P.W. 1 had spoken to generally about the occurrence and the death of his son as a result thereof. He has marked Ex. P.1, Pay certificate given by the branch manager in relation to pay particulars of the deceased. Ex. P.2 copy of the post-mortem certificate. Ex. P.3, extract from the death register, Ex. P.4, S.S.L.C. book of the deceased, Ex. P.5 certificate from the branch manager about the date of joining of the deceased in the bank and Ex. P. 6 copy of the Motor Vehicles Inspector's report P.W. 2 had deposed about the facts relating to the accident. On the side of the respondents, no oral evidence was adduced and only Ex. R.1, the policy of insurance had been marked.

7. On the first point as to whether there was any rashness and negli