The main legal point established in the judgment is the liability of the insurance company and the violation of policy conditions by the owner of the vehicle.

JUDGMENT :

This Civil Miscellaneous Appeal has been filed by the appellant Insurance Company against the award and decree dated 28.02.2007 made in M.C.O.P.No.253 of 2004, on the file of Motor Accidents Claims Tribunal (Subordinate Judge), Gudiyatham.

2.Brief facts which are necessary for disposal of this appeal are as follows:-

On 02.05.2004 at about 10.50 A.M., when the claimant/first respondent and others were travelling in a TATA Sumo bearing Registration No.AP 03 G 5119, from Paradarami to Tiruppathi near Cystain Factory in between Chandragiri to Ithepalli Road, the vehicle hit behind the rear side of the bus bearing Registration No.AP 10 Z 4925, which was standing near the cystain factory. Due to the accident, five persons died and seven were injured and the claimant was taken to the SCRRGG Hospital, Tirupathi for treatment. Alleging that the accident was due to negligent driving of the driver of the TATA Sumo, the first respondent/claimant and other injured persons have filed a claim Petition before the Motor Accidents Claims Tribunal, Gudiyatham, Vellore under Section 166 of the M.V.Act, claiming compensation of Rs.1,00,000/- against the owner of the TATA Sumo and its insurer. The same was taken on file in MCOP. No.253 of 2004.

1. Before the Tribunal, during trial, in order to prove the case, the claimants have examined seven witnesses and marked 28 documents viz., Exs.P1 to P28. On the side of the respondents, two witnesses were examined and three documents were marked. The Tribunal, after hearing the arguments on either side and after considering the oral and documentary evidences, has come to the conclusion that the accident occurred only due to negligent driving of the driver of the TATA Sumo. As the second respondent's Sumo was insured with the appellant-insurance company, the Tribunal held that the first and second respondents are liable to compensate the claimant. After considering the oral and documentary evidence, the Tribunal has passed common order and awarded a sum of Rs.17,000/- as compensation to this claimant with interest at the rate of 6% per annum from the date of petition till the date of realization.

4. Aggrieved by the said common order dated 28.02.2007, the appellant Insurance Company has filed this appeal before this Court for reduction of the compensation.

5. The learned counsel appearing for the appellant-Insurance Company would submit that the Tribunal, by considering the evidence of PW1 and evidence of RW2, had come to the conclusion that the accident was occurred due to rash and negligent driving of the driver of the Sumo. Admittedly, the owner of the vehicle was not challenged the findings of the Tribunal. PW2, in his cross-examination, stated that he was not aware of the owner of the Car, they engaged the vehicle for hire and paid Rs.1,050/- toward hire charges. P.W.3 to P.W.5 also, in their cross examination categorically admits that they have engaged the vehicle in question for hire. On the other hand, RW1, in his cross examination, stated that 14 persons were traveled as against the seating capacity of 9. As per the policy, the vehicle cannot be used for hire. Further, the driver of the TATA Sumo has not possessed any valid driving license at the time of the accident. Hence, the owner of the vehicle is liable to pay the compensation to the claimant. Therefore, the award amount passed by the Tribunal is unfair.

6. Further the learned counsel for the Appellant would contend that the Tribunal under the impugned Award has given an erroneous finding that four children below ten years who were also occupants of the insured vehicle, at the time of the accident, cannot be treated as adults and hence, came to an erroneous conclusion that there is no violation of policy condition by the owner of the vehicle.

7. The learned counsel for the Appellant would further contend that as against the findings given by the Tribunal against the owner of the vehicle under the impugned Award, no appeal has been filed