JUDGMENT :

Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award passed in M.C.O.P.No.288 of 2011 dated 17.08.2017 on the file of the Motor Accident Claims Tribunal cum Subordinate Court, Kuzhithalai.

1. This Civil Miscellaneous Appeal has been filed against the award passed in M.C.O.P.No.288 of 2011 dated 17.08.2017, on the file of the Motor Accident Claims Tribunal cum Subordinate Court, Kuzhithalai.

2. The appellant herein is the second respondent, the respondents 1 to 4 herein are the claimants and the fifth respondent herein is the first respondent in the claim petition. The respondents 1 to 4 herein have filed a claim petition in M.C.O.P.No.288 of 2011, claiming compensation for the death of one Palaniyappan, in an accident that took place on 19.11.2011. The Tribunal has awarded a sum of Rs. 8,82,348/- (Rupees Eight Lakhs Eighty Two Thousand Three Hundred and Forty Eight only) as compensation. Against which, the appellant has preferred this appeal.

3. Brief substance of the claim petition in M.C.O.P.No.288 of 2011 is as follows:

On 19.11.2011, at about 03.15 a.m., when the deceased Palaniyappan was transporting railway equipments in a Mahindra Pickup Van bearing registration No.TN-47-Z-7589 along the Madurai - Tirunelveli main road near Ellaiyasananthal over bridge, the driver of the van drove the vehicle in a rash and negligent manner and hit against the centre median blocks. Since he could not control the van, he turned the van on the left side and dashed against the side wall of the bridge and the vehicle capsized and the deceased died on the spot. The deceased was working as a loadman and mason and was earning Rs.10,000/- (Rupees Ten Thousand only) per month. The petitioners are the dependants of the deceased and they claim a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) as compensation.

4. Brief substance of the counter filed by the second respondent therein is as follows:

The driver of the van was not having valid driving licence at the time of accident. There is no badge endorsement in the licence. The vehicle is meant only for transporting goods. At the time of accident, the deceased and five others travelled in the vehicle. The policy conditions are violated. The second respondent is not liable to pay compensation. The seating capacity of the vehicle is only for two persons. The claimants have to prove that they are the legal heirs of the deceased. The age, profession and income of the deceased are to be proved.

5. The first respondent was set exparte. On the side of the claimants, three witnesses were examined and five documents were marked. On the side of the respondents, three witnesses were examined and three documents were marked. One witness document was marked. After trial, the Tribunal has awarded a sum of Rs. 8,82,348/- (Rupees Eight Lakhs Eighty Two Thousand Three Hundred and Fourty Eight only) as compensation to be paid by the second respondent therein and to recover the same from the first respondent therein. Against which, the appellant has preferred this Civil Miscellaneous Appeal.

6. On the side of the appellant, it is stated that the Tribunal is wrong in passing an order for pay and recover and the Tribunal ought to have fixed the liability entirely on the first respondent. The policy is applicable only for the persons who travelled in the cabin. Only two persons are entitled to travel in the van. Totally seven passengers travelled in the pick up van. The deceased was not an employee of the owner of the vehicle.

7. In support of this contention, a judgment of the Hon'ble Supreme Court in the case of Manager, National Insurance Company Limited v. Saju.P.Paul and another reported in 2013 ACJ 554 is cited, wherein it is held that the insurance company is not liable to pay compensation.

8. In the evidence of P.W.2 and P.W.3, it was admitted that seven persons travelled in the vehicle. Ex.R1 states that only two persons can travel in the pick up