JUDGMENT :

Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree, dated 19.08.2013 passed in M.C.O.P.No.709 of 2010 on the file of the Motor Accident Claims Tribunal/Additional District Cum Sessions Court, Dindigul.

1. This Civil Miscellaneous Appeal has been filed against the Judgment and Decree, dated 19.08.2013 in M.C.O.P.No.709 of 2010 passed by the learned Motor Accident Claims Tribunal/Additional District Cum Sessions Judge, Dindigul.

2. It is a case of fatal accident. On 28.08.2006, the deceased Mohanraj and three others were travelled in 407 Van Goods vehicle to plant saplings in forest range in the lorry bearing Regn. No.TN-65-7099 which was belonged to the 5th respondent herein. Near Thachachalangaru Bridge, the said 407 Van was driven by its driver in rash and negligent manner and the said Van went and topple down without noticing the pit. Due the said accident, the said Mohanraj died and other three persons were sustained injuries.

3. The claimants have filed a claim petition in M.C.O.P.No.709 of 2010 on the file of the learned Motor Accident Claims Tribunal/Additional District and Sessions Judge, Dindigul, seeking compensation.

4. Before the Tribunal, on the side of the claimants two witnesses were examined as P.W.1 & P.W.2 and marked three documents as Exs.P.1 to P.3. Ex.R.1 to Ex.R.4 were marked.

5. The Tribunal, after considering the pleadings, oral and documentary evidences and the arguments of the counsel for the claimants and the insurance company and also on appreciating the evidences on record, 'pay and recover' was ordered. Aggrieved by the said order, the Insurance Company is before this Court.

6. Heard on either side. Perused the material documents available on record.

7. The claimants have filed a claim petition in M.C.O.P.No.709 of 2010 before the Tribunal seeking compensation for the death of husband of the 1st claimant who died in an accident on 28.08.2006 at 10.00 a.m., when the deceased along with three persons were travelled in a 407 van along with three persons, the driver of the Van drove the vehicle in rash and negligent manner and fell down in a pit. Due to the said accident, the deceased died in Government Hospital, Madurai.

8. The 1st claimant is wife and the 2nd and 3rd claimants are parents and the 4th claimant is minor son of the deceased. The tribunal has awarded a sum of Rs.6,93,000/-as compensation and directed the appellant/insurance company to pay the said award amount and the same shall be recovered from the 5th respondent herein/owner of the vehicle. Against the said 'pay and recover' order, the appellant/insurance company has preferred this appeal.

9. It is a admitted fact that the deceased Mohanraj and others were travelled in the Goods vehicle. They neither travelled as owner of Goods nor authorised representatives of owner. Further, they are not the employee of the alleged vehicle.

10(i). In the Judgment reported in 2009 (1) CTC 1, United India Insurance Co. Ltd., V. Nagammal and others, the Full Bench of this Court held as follows:

“31.Thus, from an analysis of the Statutory provisions as explained by the Supreme Court in various decisions rendered from time to time, the following pictures emerges:

(i) The Insurance Policy is required to cover the liability envisaged under Section 147, but wider risk can always be undertaken.

(ii) Section 149, envisages the defences which are open to the Insurance Company. Where the Insurance Company is not successful in its defence, obviously it is required to satisfy the Decree and the Award. Where it is successful in its defence, it may yet be required to pay the amount to the Claimant and thereafter recover the same from the Owner under such circumstance envisaged and enumerated in Section 149(4) & Section 149(5).

(iii) Under Section 147 the Insurance Company is not statutorily required to cover the liability in respect of a Passenger in a Goods vehicle unless such Passenger is the Owner or