T. RAJA, J.

1. The claimant in whose favour a sum of Rs. 1,42,000/- has been awarded vide the Award dated 19.6.2008 passed in MCOP No. 77 of 2007 by the Motor Accident Claims Tribunal/Additional District Court/Fast Track Court No. 2, Gobichettipalayam, has approached this Court seeking for an order from this Court fastening the liability for payment of the entire award amount against the Insurance Companies by applying the principle of "pay and recover".

2. The learned counsel appearing for the claimant/appellant would submit that on 29.8.2004, the claimant/appellant was travelling in the front seat in a Car bearing Reg.No. TN 36 A 7900 belonging to the second respondent, while the first respondent was driving the Car and when the Car was proceeding on the Sathyamangalam - Gobichettipayalam Highway, near Santhi Theatre, a lorry bearing Reg.No.KA 09 P 5877 driven by the fourth respondent in a rash and negligent manner, dashed against the Car in which the claimant/appellant was travelling, as a result, the claimant/appellant suffered multiple injuries and fracture on his right leg and on his right shoulder. He took treatment in Kovai Ganga Hospital. Upon filing claim petition, the Tribunal awarded a compensation of Rs. 1,42,000/- with interest at 7.5% p.a., from the date of claim petition till the date of realisation and held that the first and second respondents herein are jointly and severally liable to pay the entire award amount. Instead, the Tribunal ought to have directed the Insurance Company to pay the award amount and thereafter, recover the same from the owner of the vehicle, he pleaded.

3. Adding further, the learned counsel for the appellant would submit that the respondents 1 and 4 herein are the competent persons to speak about the manner of accident. However, they have not been examined as witnesses by the insurer. Therefore, the Tribunal ought to have drawn adverse inference against them under section 114 of the Evidence Act. Adding further, he would submit that the Tribunal has failed to note that the doctrine of last opportunity would play a vital role in deciding the negligence on the part of the 4thth respondent. Soon after the accident, the first respondent and the appellant herein was taken to the hospital for treatment and that by taking advantage of the situation, the driver of the lorry (R4) has conveniently implicated the first respondent as accused in the complaint given to the police regarding the accident.

In the absence of any oral or documentary evidence on record, the Tribunal has committed an error in holding that the driver of the car was responsible for the accident. The damage caused to the Car is not a decisive fact to decide the negligence. He would further submit that the Tribunal has simply brushed aside the oral evidence of PW.1 even without assigning any reasons. In the absence of any contra evidence to disbelieve the version of PW.1, it is not proper on the part of the Tribunal to give a finding as if it was the driver of the car who was responsible for causing the accident.

4. Adding further, the learned counsel for the appellant would further submit that when the Insurance Company has not specifically pleaded for exonerating its liability from the payment of compensation, the Tribunal ought to have fixed the liability on the Insurance Company. On the basis of the Judgment of this Court rendered in M.K. Balasubramaniyam v. S.D.Saravanan and Bajaj Allianz Insurance Co., Ltd., Coimbatore [2012 (1) TN MAC 427] wherein it has been held that even a gratuitous pillion rider is entitled to get coverage under package policy, he would submit that the appellant who travelled in the Car as a third party, is entitled to get compensation from the insurer. He would further submit that the Tribunal has to re-fix the liability of compensation on the Insurance Company, as per the judgment rendered in Karuthapandi v. R. Sivakumar and another reported in 2006 (5) CTC 526. On these basis, he pleaded