Validity of insurance policy and liability of the Insurance Company to pay compensation under the Motor Vehicles Act, 1988.

JUDGMENT :

D. KRISHNAKUMAR, J.

Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 28.10.2008, made in M.C.O.P. No. 294 of 2005, on the file of the Subordinate Judge, Kancheepuram.

The matter is heard through “Video Conferencing.”

1. This Civil Miscellaneous Appeal has been filed by the appellant-Insurance Company against the judgment and decree dated 28.10.2008, made in M.C.O.P. No. 294 of 2005, on the file of the Subordinate Judge, Kancheepuram.

2. The appellant is the 2nd respondent in M.C.O.P. No. 294 of 2005, on the file of the Subordinate Judge, Kancheepuram. The respondents 1 to 4 have filed the said claim petition, claiming a sum of Rs. 15,00,000/- as compensation for the death occurred in the road accident that took place on 02.05.2005.

3. According to the respondents 1 to 4/claimants, on 02.05.2005 at about 8.30 hours when the driver of the auto rickshaw bearing Reg.No. TN21 F 1033 proceeding with a poultry load at a place near Annamalai Naicker pump-set, Kalakattur, a driver of the auto drove the auto in a rash and negligent manner and dashed against the tamarind tree. Due to the accident, the pillion rider and load man Muniandi sustained fatal injuries and died on the spot. Being the legal heirs of the deceased Muniandi, the claimants/respondents 1 to 4 herein have filed a claim petition before the tribunal, claiming compensation against the owner of the vehicle and the Insurance Company for a sum of Rs. 15,00,000/-.

4. The appellant-Insurance Company, filed counter statement before the tribunal and denied the subsistence’s of vehicular records namely Driving License, permit, FC and RC. It is further stated that the alleged vehicle is a goods career auto, therefore the passengers are not supposed to travel in the said vehicle, therefore, they are not liable to pay compensation as claimed by the claimants. The Insurance Company also does not admit the age, avocation, income of the deceased.

5. Before the Tribunal, the 1st respondent examined herself as PW-1, the eyewitnesses were examined as PW-2 and PW-3 and marked documents Ext.P1 to P5. The appellant examined its official as RW-1 and no documents were marked.

6. The Tribunal after considering the pleadings, oral and documentary evidence, fixed liability on the driver of the alleged vehicle and awarded compensation of Rs. 4,30,000/- under various heads together with interest at 7.5% per annum payable by the Insurance Company being the insurer of the vehicle.

7. Challenging the liability fastened on them by the award dated 28.10.2008, made in M.C.O.P. No. 294 of 2005, the appellant - Insurance Company has come out with the present appeal.

8. The learned counsel for the appellant/Insurance Company that the deceased Muniandi had travelled in a Mini Auto, a goods vehicle. There is no coverage for the passenger and in the registration certificate also it has been specifically mentioned that the seating capacity is one including driver and there is no provision for safety travelling of passenger. The learned counsel further submitted that the tribunal considering the travelling of the deceased as a passenger in the absence of proof of employment neigher as a load man nor in the capacity of pillion rider, ought not to have held that the insurance company is liable to pay compensation.

9. On the other hand the learned counsel for the respondents 1 to 4/claimants submitted that though the appellant denied the policy of insurance and the validity of the vehicle travelled by the deceased bearing Reg. No. TN-21F-1033, the Insurance Company has not adduced any evidence or produced any document to prove the said contention. Further RW1 in his evidence has admitted that as per Ex.A5 copy of the policy, a premium has been paid to the driver and the other person. He has further stated that as per the said policy, three persons including driver are covered under the policy. Based on the aforesaid validity of the