The liability of the vehicle owner and the Insurance Company's denial of liability due to policy violation.

JUDGMENT :

G. JAYACHANDRAN, J.

Prayer: This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 16.07.2013 passed in M.C.O.P. No. 32 of 2008 by the Motor Accidents Claims Tribunal (II Additional District Court), Tiruppur.

1. This Civil Miscellaneous Appeal is preferred by the vehicle owner who is mulcted with liability of paying the compensation of Rs. 1,09,590/- to the claimant who sustained injury in the motor accident caused by the appellant vehicle.

2. On 02.12.2007, at about 3.30 p.m. the vehicle owned and driven by the appellant carrying the claimant and others, in a rash and negligen manner grazed on the electrical post, in which, the claimant sustained fracture injuries on his right brachial artery and on right cubital fossa. At the time of accident, the claimant was 9 years old and studied IV standard. The appellant herein has carried the victim along with other children to attend a political meeting. On the way, the accident has occurred. Based on the complaint given by the father of the victim, a case was registered against the appellant.

3. The victim boy was admitted in P.S.G. Hospital, Coimbatore and a sum of Rs. 1,75,000/- was spent for his medical expenses. Hence, compensation of Rs. 3,00,000/- was sought before the Tribunal. The father of the victim and two others were examined in support of the claimant. PW-1 is the defacto complainant and father of the minor claimant; PW-2 is an eye witness to the accident and PW-3 is the Doctor who issued Wound Certificate to the victim. Totally, nine exhibits were marked on the side of the claimant. On behalf of the Insurance Company, one witness was examined and four exhibits were marked.

4. The appellant herein remained absent and set ex-parte before the Tribunal. The Insurance Company entered appearance through its counsel and filed counter affidavit wherein, it was alleged that the appellant vehicle has violated the policy condition. The three wheeler Auto bearing Registration No. TN 40 Y 8069 is a commercial vehicle owned by the appellant and insured under the second respondent. It is the goods vehicle and no passengers are permitted to travel. If any person travelling in the said vehicle, they are unauthorised passengers or gratuitous passengers. Hence, the Insurance Company is not liable to indemnify those persons for whom there is no insurance coverage.

5. Pointing out that the F.I.R. has been registered after six days of delay which creates more doubt about the nature of the accident, the Insurance Company has denied their liability on the ground that it is a clear case of policy violation and therefore, they must be exonerated.

6. The Tribunal on considering the evidence, held that though the F.I.R. was filed after six days of accident, the same has been investigated by the Police and the case has been registered against the appellant for offences under Sections 279 and 337 I.P.C. During trial, PW-2 who is the eye witness to the occurrence has also spoken about the accident.

7. The Officer of the Insurance Company who was examined as DW-1 admits that the appellant vehicle was involved in the accident while carrying children in the commercial vehicle contrary to the policy condition. Therefore, while fixing the liability on the vehicle owner, the Tribunal considered the partial permanent disability at 24% as certified by PW-3, in Ex.P.8. Awarded Rs. 48,000/- under the head of partial permanent disability and Rs. 30,000/- for pain and suffering besides Rs. 31,590/- towards medical expenses. A total sum of Rs. 1,09,590/- was awarded with interest @ 7.5 % per annum from the date of petition till the date of realisation payable by the owner of the vehicle, who is the appellant herein.

8. In the appeal, it is contended by the appellant/vehicle owner that the Tribunal ought not to have foisted the liability on the owner of the vehicle since, the vehicle is duly insured under the second respondent Insurance