The central legal point established in the judgment is the liability of the Insurance Company under Section 147 of the Motor Vehicles Act and the requirements for proving rash and negligent driving in a compensation claim.

1. The Insurance Company is the Appellant herein. The Appeal is filed against the judgment and decree dated 16.04.2003 made in MCOP.No.303 of 2002, on the file of the Motor Accident Claims Tribunal (Principal District Judge), Tiruvannamalai, insofar as the liability and quantum of compensation awarded by the Tribunal.

2. The learned counsel for the Appellant contended that once the deceased is a tort-feasor and after filing the Motor Accident Claims Petition, the additional premium is also not collected, passing the award against the Insurance Company is not maintainable in law and hence the appeal has to be allowed.

3. Thecounsel appearing for the Electricity Board (R5) contended that the vehicle has been insured with the appellant by way of Act Policy. Therefore, the judgment of the Tribunal is correct and it has to be upheld. The respondents 1 to 4 also contended that the award of the Tribunal is correct and it has to be upheld.

4. From the evidence, it is seen that on 14.01.2000 at about 10.30 a.m, the deceased, while driving the jeep in his official capacity for official work, when negotiating the curve, since he could not control the vehicle, the vehicle capsized resulting which the death of the driver on the spot. The deceased was working under the fifth respondent and he was aged about 50 at the time of the accident are not in dispute. Respondents 1 to 4 are the dependents of the deceased.

5. The vehement contention of the appellant is that the since vehicle has not colluded with any other vehicle, the Insurance Company is not liable to make payment. PW.2, who claims to be an eyewitness , in his evidence deposed that when the deceased was driving and negotiating the curve, the vehicle was capsized. The accident is not due to the mechanical defect also.

6. From the perusal of the judgment, it is seen that there is no specific pleading of rash and negligent driving in the claim petition. Likewise, there is no clinching evidence as well as there is no issue also been framed in this regard by the Tribunal. The Tribunal has framed the triable issue in this regard, namely,

"(1)Whether at the time of accident, the jeep of the first respondent bearing Registration No.TNM 6356 driven by its driver, the deceased, resulted in an accident in which the deceased driver was died?"

and the point for consideration was not framed the question of rash and negligent. Hence, there is no issue regarding rash and negligent driving of the deceased driver has been framed and there is no specific finding in this regard also.

7. At this juncture, the learned counsel for the appellant pointed out the judgment reported in 2009 (2) TN MAC169 (SC) (Ningamma and another ..vs.. United India Insurance Company Ltd.,). In the Judgment cited supra, the Honble Supreme Court has held that eventhough there is no specific pleadings/issues regarding the terms and conditions of the Insurance Policy and the applicability of provisions of Section 147 of the Motor Vehicles Act and also the rash and negligent driving on the part of the deceased, atleast the High Court has to consider and answer the said issues. Therefore, by showing this judgment, this Court has been reminded by the counsel for the appellant saying that there must be specific finding regarding rash and negligent act of the driver or the deceased at the trial court. Thereafter, the award has to be passed in concurrent with this. In this case, there is no such specific pleading regarding the rash and negligent act. Likewise, as I already pointed out, no such issue has also been framed and no such finding has been rendered by the Tribunal as expected by law. Therefore, I am of the view that this aspect has to be considered and decided first, then only the petitioners are entitled to prosecute this application.

8. The learned counsel appearing for fifth respondent contended that since fifth respondent has taken out the policy for the vehicle and it has been issued as an Act Policy, t