Liability of insurance company and violation of policy condition by minor rider

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the fair and decreetal order, dated 09.02.2021 made in M.C.O.P.No.41 of 2019, on the file of the Motor Accidents Claims Tribunal/Principal District Judge, Ramanathapuram.)

1. The insurance company is the appellant herein.

2. The respondents 1 to 3 are the legal representatives of the deceased Sharukhan. Challenging the award on the ground of liablity as well as on the quantum and negligence, the respondents 1 to 3 herein filed the claim petition in M.C.O.P.No.41 of 2019 claiming compensation on the ground that the minor boy died in the road transport accident on 12.07.2016 due to the rash and negligent driving of the driver of the fourth respondent herein.

3. For the sake of convenience, the parties are referred to as per their ranking before the tribunal.

4. The accident took place on 12.07.2016 on NH-49 Road, near Old Pattinamkathan Check Post while go to Adam Nagar on 12.07.2016 at 06.45 p.m. At the time of accident, on 12.07.2016, the deceased Sharukkan was studying X standard at Shaji Infant School, Ramanathapuram went to tuition class by riding a two wheeler bearing Reg.No.TN65T8440 on the above said road and waiting to go to the Adam Nagar from west to east direction at about 06.45 p.m. At that time, a Yamaha two wheeler bearing Reg.No.TN65AB6645 belongs to the 1st respondent and insured with the 2nd respondent came on the above said road from east to west direction, the respondent two wheeler rider drove rashly, negligently and in over speed dashed against the decease' two wheeler causing the accident.

5. Before the Tribunal, on the side of the claimants, PW1 and PW2 were examined and Ex.P1 to Ex.P5 were marked. On the defendants' side, DW1 and DW2 were examined and Ex.R1-insurance policy copy was marked.

6. The insurance company filed the counter statement alleging that the rider of both the two wheelers are minors and the same is violation of policy condition. Hence, the insurance company is not liable to pay the compensation. In respect of one of the rider of the two wheelers, the claim petition has been filed. For the death of the another rider of the opposite vehicle, no claim petition has been filed. Based upon the oral and documentary evidence placed before the Court, the Tribunal has come to the conclusion that the accident has taken place due to the rash and negligent driving of the rider of both the two wheelers and fixed the contributory negligence at 50% each. Aggrieved against the said award, the insurance company of the one of the vehicle has preferred its appeal on the ground that contributory negligence of 50% should not be fixed upon the rider of the vehicle insured with the appellant insurance company. Further contended that since the owner of the vehicle has allowed his son, who is minor on the date of the accident is amounts to violation of policy condition and hence the insurance company has to be exonerated from the liability.

7. Heard the learned counsel for the appellant as well as the respondents 1 to 3/claim petitioners.

8. After perusing the oral evidence of PW1 and PW2 coupled with the documentary evidence of Exs.P1, P2 and P5, the Tribunal has rightly come to the conclusion, that the accident has taken place due to the rash and negligent driving of both the riders of two wheelers, hence, both of them are minors and both of them died in the accident and hence, I do not find any reason to interfere with the said finding of the Tribunal.

9. On the point of quantum of compensation I find that it is just and reasonable. On the point of liability of the appellant insurance company, this claim petition is filed by the legal representatives of the rider of the two wheeler TN 65 T 8440 against the owner of the Yamaha two wheeler bearing Reg.No.TN65AG6645. Admittedly, the rider of the two wheeler of the insured vehicle is a minor does not possess any driving licence and hence, it amounts to violation o