The insurance company must prove that the accident occurred solely due to the violation of policy conditions to absolve itself from liability.

In the claim petition, the following are stated -

The claimant was working in Telephone Department in Namakkal District and was aged 40 years. He was earning Rs.6,275/-p.m. On 31.07.2000, at about 10.45 a.m. while he was travelling in TVS Suzuki Motor Cycle bearing Registration No.TN.28 H 1488 as a pillion rider along with his friend one Babu who was also a pillion rider and the same was driven by one Babu. When the Motor cycle was going near Thanneermathipatti Branch Road in Gemmedu to Cholakadu Main Road, lorry bearing Registration No.TN 28C 2040 driven by its driver in a rash and negligent manner dashed against the Motor cycle and the claimant and his friend Babu were thrown away from the vehicle and they sustained injuries. The claimant was immediately removed to Mohan Kumaralingam Government Medical College Hospital, Salem. The lorry driver was at fault at the time of accident. Hence, a sum of Rs.2,00,000/- is prayed for as compensation.

2. In the counter filed by the appellant/Insurance company, it is stated that in the F.I.R., it has been clearly stated that three persons had travelled in the Motor Cycle in which the injured was sitting lastly and the travel itself is violation of policy conditions. The claimant had no grip and the accident took place due to the rash and negligence on the part of one Babu. The insurer and the insured of motor cycle should have been impleaded as parties since both the drivers are responsible for the accident. The said Babu had also contributed to the accident. He did not possess any valid driving license and hence the petition has to be dismissed.

3. In the additional counter filed by the appellant/Insurance company, it is stated that due to travelling of three persons in the TVS vehicle, the driver could not have any control over the vehicle and due to imbalance, the driver of the TVS vehicle dashed against the lorry. The accident was not due to fault of the lorry driver. The person who rode the motor vehicle should have stopped the vehicle on seeing both sides of the main road and proceeded. Without taking any caution and following the traffic rules, he dashed against the lorry. The accident took place in the middle of the main road and hence, the petition has to be dismissed.

4. The learned Tribunal Judge after considering the evidence of record, fastened the liability upon the lorry driver. The learned counsel for the appellant Mr.C.Ramesh Babu would very much assail the award passed by the tribunal by stating that the tribunal has lost sight of the fact that travelling of three person in a motor vehicle is violative of the traffic rules and act and the provisions of Motor Vehicles Act and that only due to imbalance of the motor cycle, the Babu dashed against the lorry and by no stretch of imagination, the lorry driver can be anchored with the liability of causing the accident.

5. It is conceded fact that three persons were travelling by the motor cycle. In the First Information Report by Babu, Ex.A.1, he has stated that while the motor cycle was coming near Thanneermathipatti diversion road, the lorry was driven by its driver in a rash and negligent manner and without sounding horn, he dashed against the motor cycle. P.W.1, the claimant also would state in line with the allegations in the F.I.R. In the cross examination, a suggestion was put to him that since three members were sitting and travelling by the motor cycle, the person who rode the same could not exercise control over it, hence the accident took place for which his answer was in the negative.

6. In this context, the learned counsel for the appellant would place much reliance upon a Division Bench decision of this Court reported in 2003-2-L.W. 75 = 2003 (1) M.L.J. 489 2, Managing Director, Tamil Nadu State Transport Corporation v. Abdul Salam & Others wherein it is observed that when three persons travelled in a motor cycle which is meant for two person, this court is of the view, the conduct of the pers