The court confirmed the joint and several liability of the driver and the insurer to pay compensation to the petitioner for the injuries and permanent disability sustained in the accident.

The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 08.04.2008, made in M.C.O.P.No.417 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District, Fast Track Court, Vellore, awarding a compensation of Rs.89,000/-with 6% interest per annum, from the date of filing petition till the date of payment of compensation.

2. Aggrieved by the said Award and Decree, the appellant/second respondent, National Insurance Co., Ltd., has filed the above appeal praying to set aside the said award and decree.

3. The short facts of the case are as follows:

On 16.10.2004, at about 6.00 p.m. the petitioner was travelling in a load Auto, on Vellore to Odukathur Road. When the said Auto was nearing the bus stop at Nattarmangalam, the driver of the said Auto bearing registration No.TN23 AA2736, owned by the first respondent, drove the auto in a rash and negligent manner, at high speed, without following traffic regulations, as a result of which the auto capsized. In the result, the petitioner sustained fracture injuries in her body. The petitioner was taken to the Government Hospital for treatment.

4. The Virinjipuram Police have filed a case against the driver of the above said load auto in Crime No.405/2004. The accident was caused by the rash and negligent driving of the driver of the load auto. The first respondent is the owner of the auto and the second respondent is the insurer of the said auto. Hence, both the respondents are jointly and severally liable to pay compensation to the petitioner towards the damages caused to the petitioner due to the above accident. The petitioner has claimed a compensation of Rs.4,00,000/- from the respondents together with interest and costs under Section 166 of the Motor Vehicles Act.

5. The second respondent in his Counter has resisted the claim stating that the petitioner, at the time of alleged accident, had travelled with other persons in the goods carrying load auto. As such, there is a clear violation of policy conditions. It has been submitted that even gratuitous passengers cannot claim any compensation though there may be a valid policy from the Insurance Company. The manner of accident as alleged in the claim has also been refuted. Further, the second respondent has denied the age, income, occupation of the petitioner and the nature of the injury sustained by the petitioner. It has further been submitted that as the claim is excessive and without merits, it is to be dismissed with costs.

6. The Motor Accident Claims Tribunal framed three issues for the consideration namely:

(i) Was the accident caused due to the rash and negligent driving by the driver of the Auto bearing registration No.TN23 AA2736?

(ii) Is the petitioner entitled to receive compensation? If so, what is the quantum of compensation, which he is entitled to get?

(iii)To what other relief?

7. On the petitioners side, two witnesses were examined as PW1 and PW2 and nine documents were marked as Exs.A1 to A9. On the respondents side, one witness was examined as RW1 and two documents were marked as Exs.B1 and B2.

8. The petitioner was examined as PW1. The PW1, in her evidence has deposed that on 16.10.2004 at 6.00 p.m. she had travelled as a passenger in the Auto bearing registration No.TN23 AA2736 and that while the Auto was going on the Vellore-Odukathur road and when it was nearing Nattarmangalam bus stop, the auto driver had driven the auto at a high speed and in a rash and negligent manner, as a result of which the auto turned turtle, due to which she had sustained injuries and taken treatment. She had further stated that a criminal case has been filed against the auto driver by the Virinjipuram Police and in support of this has marked as Ex.A1-FIR. On scrutiny of Ex.A1, it is evident that a criminal case has been filed against the auto driver.

9. The Assistant Officer, working in the second respondents firm was examined as RW