JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the fair and decreetal order, dated 05.08.2013, passed in M.C.O.P.No.143 of 2012 on the file of the Motor Accident Claims Tribunal cum Chief Judicial Magistrate, Thanjavur at Kumbakonam.)

1. This Civil Miscellaneous Appeal is filed against the award, dated 05.08.2013, passed in M.C.O.P.No.143 of 2012 on the file of the Motor Accident Claims Tribunal cum Chief Judicial Magistrate, Thanjavur at Kumbakonam.

2. The appellant herein is the claimant and the respondents herein are the respondents in the original claim petition.

3. Brief substance of the petition, in M.C.O.P.No.143 of 2012, is as follows:-

On 22.07.2010, at about 12.00 noon, while the petitioner was travelling in a TATA ACE vehicle bearing Registration No.TN-68-A-0689 to transport the goods, the vehicle was driven by its driver in a rash and negligent manner and in a turning, the petitioner lost balance and fell down and sustained fracture. The petitioner claimed a sum of Rs.10,00,000/- as compensation.

4. Brief substance of the counter filed by the second respondent, in M.C.O.P.No.143 of 2012, is as follows:-

The petitioner has to prove that the driver of the vehicle was having valid and effective driving licence and that the vehicle was insured with the second respondent. The age, avocation and monthly income of the petitioner are all denied. The period of treatment, duration of treatment and medical expenses are all denied. The amount claimed is excessive.

5. The first respondent was set ex-parte. On the side of the petitioner, two witnesses were examined and eight documents were marked. On the side of the respondents, one witness was examined and one document was marked.

6. The Tribunal, after considering both sides, has awarded a sum of Rs.88,000/- as compensation. The Tribunal has fixed 50% contributory negligence on the part of the petitioner. After deducting 50%, the petitioner was entitled for a sum of Rs.44,000/- as compensation. Against the award, the claimant / appellant has preferred this Appeal for enhancement of compensation.

7. On the side of the appellant, it is stated that the appellant has travelled only as a load man and not as an unauthorised passenger. The policy covers load men. Premium for load men was paid. Even if there is any policy violation, the Company has to pay compensation to the appellant and then, can recover the same from the owner. The Tribunal has failed to award compensation for loss of earning capacity and award has to be enhanced for pain and suffering and for temporary loss of income, for the period of treatment and that the entire compensation to be paid by the Insurance Company, without any deduction for contributory negligence.

8. The learned counsel for the appellant has relied upon the judgment of the High Court of Alahabad reported in 2011 (2) TNMAC 724 and judgments of this Court reported in 2012 (2) TNMAC 622, 2011 (2) TNMAC 361 and 2010 (1) TNMAC 231.

9. On the side of the second respondent, it is stated that there is policy violations and contributory negligence on the part of the appellant. The appellant instead of travelling in the cabin, has travelled on the top of the vehicle. There was no evidence on the side of the appellant / claimant to prove that he was authorised by the owner, to travel with the goods. Only due to the negligence of the appellant, he fell down and injured himself.

10. On the side of the second respondent, it is further stated that there is no necessity to pass an order for pay and recover. The learned counsel for the second respondent has relied upon the judgment of the Hon'ble Supreme Court reported in 2012 (2) TNMAC 731 (SC) (National Insurance Company Ltd. V. Balakrishnan and another).

11. It is seen that the vehicle was insured with the second respondent and there is policy coverage for load man. The contention of the appellant is that he travelled in the vehicle as a load man. There is no contr