The main legal point established is that the insurance company is not liable to pay compensation for a gratuitous passenger if there is no insurance coverage for passengers, even if the vehicle has valid insurance coverage.

JUDGMENT :

Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award and decree dated 06.11.2014 made in M.C.O.P.No.358 of 2013 on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Gobichettipalayam.

1. This Appeal is filed by the Insurance Company challenging the award of the Tribunal fixing the responsibility on the Insurance Company to pay compensation to the accident victim and recover the same from the vehicle owner for the violating policy condition.

2. According to the appellant, the violation of policy condition so grave for which the Insurance Company is not liable to indemnify the vehicle owner or the pay compensation and recover it later from the vehicle owner.

3. The background facts of the case is that, one Kandan @ Kandasamy aged about 72 years while travelling in a pick up van bearing registration No.TN-40-F-0830 on Karamadi to Velliyankadu main road near Maruthurmariyamman Koil, the driver of the Bolero pick up van drew the vehicle in high speed rash and negligently. Due to which, the said Kandan @ Kandasamy fell down from the vehicle and sustained head injury and injuries all over the body. He died on the spot. The accident occurred when the deceased travelling in the goods vehicle along with fertilizer bags for his agricultural purpose. At the time of accident, he was hale and healthy, earning a sum of Rs.1,00,000/- per annum, from his agricultural activities and milk vendor business. His wife, son and daughters, joined together and filed claim petition for a sum of Rs.5,00,000/- .

4. The Insurance Company contested the claim on the ground that the accident occurred when the deceased unauthorisedly travelled in a goods vehicle. The vehicle driver had no valid and effective driving license at the time of accident. Being an unauthorised gratuitous passenger in a goods vehicle, the Insurance Company is not liable to cover the risk.

5. Before the Tribunal, on the side of the petitioner two witnesses and 6 Exhibits were marked in support of the claim. On behalf of the respondent, 1 witness was examined, 3 exhibits were marked.

6. The Tribunal, after considering the rival submissions and the evidence, accepted the plea of the insurance company that the deceased fell down from the goods vehicle due to rash and negligently driving of the van driver. Ex.R.1 the Insurance Policy reveals that, the vehicle was insured under 'Act only Policy'. Ex.R.3, the driving licence of the van driver one Gopalakrishnan S/o. Chandran was only to drive light motor vehicle and the not goods vehicle. There is no valid batch endorsement. However, the Tribunal held that there is a violation of policy condition and the insurance company is not liable to indemnify the 1st respondent, since the vehicle had valid insurance coverage, the insurance company should pay the compensation and later recover the same from the owner of the vehicle. Regarding the quantum, after considering the age and other evidence, awarded a total sum of Rs.2,45,000/- payable to the claimants.

7. In the appeal, it is primarily contended by the Learned Counsel for the Insurance Company that following the judgment of the Hon'ble Supreme Court rendered in National Insurance Company Limited -vs- Kaushalaya Devi & others reported in 2009 (2) MLJ 953, the tribunal ought to have totally exonerated the Insurance Company from the liability.

8. Per contra, the Learned Counsel appearing for the claimant would submit that the Courts in India have consistently held that in case of gratuitous passenger and in case of violation of policy condition, if there is valid insurance coverage, the Insurance Company has to pay the claimant and then recover it from the vehicle owner. The said principle has been adopted uniformly by the Courts in order to protect the innocent accident victims, who are unaware of the violation of policy conditions by the vehicle owners.

9. In support of his arguments, the Learned Counsel for th