The court upheld the principle of pay and recover in case of policy violation by the owner of the vehicle and the liability of the Insurer in case of an accident involving an unauthorized passenger carrying cattle in a LMV vehicle.

JUDGMENT :

(Common Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, praying against the award and decree dated 28.04.2015 made in M.C.O.P.No.392 of 2012 on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Rasipuram.)

(The case has been heard through video conference)

1. These two appeals are directed against the award passed by the Motor Accident Claims Tribunal, Subordinate Judge, Rasipuram in M.C.O.P.No.392 of 2012 dated 28.04.2015.

2. The dependants of the deceased Subbu @ Subramani filed claim petition in M.C.O.P.No.392 of 2012 against the owner of TATA Ace bearing registration No.TN 28 AZ 3839 and its Insurer viz., United India Insurance Company Ltd., Rasipuram seeking compensation of Rs.15 lakhs. As per the claim petition, the accident occurred while Subbu @ Subramani along with another person were travelling in a TATA Ace LMV goods carrier vehicle transporting cattle (cows). As per the F.I.R., the cattle became restless and rattling the vehicle, so the deceased tried to pacify the cattle but fell from the vehicle and sustained fatal injury.

3. The first information report was given by one Palanisamy who was copassenger in the said LMV goods carrier. He was not examined by the claimants instead, a stranger by name Annadurai examined as P.W.2 has deposed that he saw the accident while travelling in his Two Wheeler. Due to rash and negligent driving of TATA Ace Driver, the vehicle ran into a ditch and turned turtle in which, Subbu @ Subramani sustained injury and died.

4. The Insurance policy of the vehicle is marked as Ex.R.1 indicates that insurance coverage for third party and one employee under Workmen Compensation Act. From the F.I.R., as well as in the other evidence, it is proved that, at the time of accident, beside the Driver-cum-Owner, two other persons were travelling in the goods vehicle along with cattle. The Tribunal after considering the claim petition and the counter has held that there is a policy violation by the owner by carrying excess passenger and therefore, the Insurance Company is entitled to recover the award amount after paying it to the claimants. On the said basis, the compensation of Rs.7,05,000/- was awarded with interest @ 7.5% per annum interest from the date of petition till the date of realization.

5. In the appeal filed by the Insurance Company (C.M.A.No.527 of 2016), it is stated that the Tribunal ought to have exonerated the Insurance Company totally for the violation of policy condition and the Motor Vehicle Act not only for allowing excess passenger but also for carrying cattle in the goods vehicle. As per the Motor Vehicles Act, though the definition of goods includes cattle, in the ordinary goods vehicle, carrying cattle is prohibited. More so, when the deceased is an unauthorised passenger in the goods vehicle, the Insurer is not liable to pay the compensation. Therefore, the award directing the Insurance Company to pay and recover has to be modified as payable by the owner of the vehicle exclusively.

6. The learned counsel for the claimants and the appellants in C.M.A.No.879 of 2016, would submit that the order of the Tribunal directing the Insurer to pay and recover from the Insured is in consonance with the judgments of this Court rendered in Chinnappan vs. K.P.Ramraj (2012 (1) TNMAC 668) and in The New India Assurance Company Ltd., vs. Varadi Lakshmi Devi & others.

7. Further, the learned counsel for the claimants would submit that the compensation of Rs.7,05,000/- awarded by the Tribunal is very less. The income of the deceased was assessed very low @ Rs.7,500/- per month instead of Rs.10,000/- and compensation under other heads also not in consonance with the settled principle of law in various judgments of the Hon'ble Supreme Court. The learned counsel would also rely upon the case in National Insurance Co. Ltd., Vs. Pranay Sethi and others (2017 (2) TN MAC 609 (SC)) which was rendered after the filing of the appeal and