The main legal point established in the judgment is that the owner of the vehicle alone is liable to pay compensation to a deceased passenger traveling with goods in a commercial vehicle, and no liability can be fastened on the Insurance Company.

JUDGMENT :

R. THARANI, J.

Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the award, dated 21.03.2011, made in M.C.O.P. No. 1217 of 2006, on the file of the Motor Accidents Claims Tribunal, I Additional Sub Court, Trichy and to set aside the same.

1. This Civil Miscellaneous Appeal has been filed against the award, dated 21.03.2011, made in M.C.O.P. No. 1217 of 2006, on the file of the Motor Accidents Claims Tribunal - I Additional Sub Court, Trichy. The appellant herein is the second respondent and the respondents 1 to 4 herein are the claimants and the fifth respondent herein is the first respondent in the original M.C.O.P. Petition.

2. Brief substance of the claim petition in M.C.O.P. No. 1217 of 2006, is as follows:

On 05.02.2006, at about 4.00 pm, the deceased was travelling in a minidoor Auto bearing Registration No. TN-46-C-7985, along with the goods, at that time, the driver of the vehicle drove the vehicle in a rash and negligent manner, due to the said impact, the vehicle capsized down in a pit. The deceased succumbed to the injuries. The deceased was earning Rs. 6,000/- per month and the claimants claimed Rs. 6,00,000/- as compensation.

3. Brief substance of the counter filed by the second respondent in M.C.O.P. No. 1217 of 2006, is as follows:

The vehicle belonged to the first respondent. The vehicle was insured with the second respondent. The vehicle is a commercial vehicle. Nobody is permitted to travel in a commercial vehicle. The deceased did not travel in the cabin. He travelled along with the goods. Hence, the first respondent alone is liable to pay compensation and prayed the petition to be dismissed.

4. On the side of the claimants, 2 witnesses were examined and 4 documents were marked. On the side of the respondents, 1 witness was examined and 1 document was marked. After considering both sides, the Tribunal awarded a sum of Rs. 2,35,000/- as compensation to be paid by the first and second respondents and the second respondent/Insurance Company was directed to pay the compensation and thereafter, to recover the same from the first respondent.

5. Against the order, the appellant/Insurance company has filed this appeal on the following grounds:

The deceased was an unauthorized passenger. The Tribunal is wrong in fixing the liability on the appellant. The seating capacity of the vehicle is one. Except the driver, no other person is entitled to travel in the goods carrier vehicle. The finding of the Tribunal that the deceased can travel as the owner of the vehicle is against the provisions of the Motor Vehicles Act. The Tribunal ought to have passed the award only against the owner of the vehicle. In case of violation of policy condition, the owner alone is liable. The Tribunal has erred in fixing the monthly income as Rs. 3,000/- without any record. The Tribunal has erred in awarding Rs. 1,92,000/- for loss of dependency. The Tribunal ought to have deducted 50% towards personal expenses. Awarding Rs. 40,000/- towards loss of love and affection is erroneous. The total compensation is excessive and the interest also is to be reduced.

6. On the side of the appellant, it is stated that the deceased travelled as a gratuitous passenger and he travelled on the top of the goods in the carriage. The vehicle capsized. Including the deceased, three persons have travelled in the vehicle and two of them travelled behind the Cabin, sitting on the gunny bags. Section 238 of the Motor Vehicles Act, prohibits travelling on the top of the goods. There is no possibility of an order of pay and recover, in cases of gratuitous passengers.

7. A judgment of the Hon'ble Supreme Court reported in National Insurance Co. Ltd. vs. Cholleti Bharatamma and Others, 2008 (1) SCC 423 is cited, wherein, it is stated as follows:

“11. The effect of 1994 amendment came up for consideration in National Insurance Co. Ltd. vs. Baljit Kaur and Others, (2004) 2 SCC 1, wherein this court following Asha Rani (s