An Act Policy does not cover the risk of gratuitous passengers in a private car, and the principle of pay and recover is not applicable in such cases.

JUDGMENT

(Prayerin CMA.No.3658/2013: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree passed in MCOP.No.1426/2010 on 16.04.2014 on the file of the Motor Accident Claims Tribunal [Subordinate Judge], at Tiruppur.

In Cross Objection No.77/2017: Cross Objection filed under Order 41 Rule 22 of CPC to enhance the award amount in the decree and judgment dated 16.04.2014 made in MCOP.No.1426/2010 on the file of the Motor Accident Claims Tribunal/Sub Court, Tiruppur, by allowing the Cross Objection with interest and cost.)

Common Judgment:

S .S. Sundar, J.

(1) CMA.No.3658/2014 is preferred by the New India Assurance Company who is the insurer of the vehicle owned by the 4th respondent in the Appeal as against the Award of compensation by the Motor Accident Claims Tribunal [Sub Court, Tiruppur] in MCOP.No.1426/2010.

(2) Cross Objection No.77/2017 is preferred by the claimants seeking enhancement of the compensation awarded by the Tribunal.

(3) The 1st respondent in the Civil Miscellaneous Appeal is the wife and respondents 2 and 3 are the parents of the deceased Palanisamy Respondents in the Appeal are the Cross Objectors in the Cross Objection.

(4) Since both the Civil Miscellaneous Appeal and the Cross Objection arise out of the judgment of the Tribunal dated 14.04.2014 made in MCOP.No.1426/2010, both are disposed of by this common judgment.

(5) Brief facts that are necessary for the disposal of the above Appeal and Cross Objection are as follows:-

(6) On 26.11.2010, at about 23.30 hours, the deceased by name Palanisamy along with the 4th respondent by name Arjunan travelled in a Maruti 800 Car [a passenger car] on their way from Pollachi to Erode. The accident occurred near Periya Thottam, Periyar Nagar Bus Stop at Kayampalayam, Kovai to Trichy Main Road. There is no dispute that the said vehicle is owned by the 4th respondent. It is the common case of the appellant/Insurance Company and the claimants that the 4th respondent drove the vehicle in a rash and negligent manner and dashed against the stone at the left side of the road. As a result of that, the car rolled on the road and persons residing nearby, came to rescue the persons inside the car and found the deceased Palanisamy dead on the spot and the body was sent to the Government Hospital at Kangeyam. Since the vehicle was was insured with the appellant/Insurance Company, the claimants filed the claim petition before the Tribunal in MCOP.No.1426/2010 claiming a sum of Rs.25 lakhs for the loss of income and under other heads. It is also stated by the claimants who are respondents 1 to 3 in CMA.No.3658/3024 that the appellant herein and the 4th respondent are jointly and severally liable to pay the entire compensation.

(7) The Claim petition was contested by the appellant/Insurance Company who was the 2nd respondent before the Tribunal mainly on the ground that the Policy taken by the 4th respondent was only an Act Policy [liability only/statutory policy] and no additional premium was paid for gratuitous passengers/occupants of the car, and hence, the appellant/Insurance Company is not liable to pay any compensation to the claimants. Since the deceased was a gratuitous passenger in a private car and is not a third party under the terms of the Policy, the appellant contended that the Policy does not cover the risk and hence, the appellant/Insurance Company is not liable to pay the compensation. In the counter affidavit, the quantum of compensation claimed was also denied and the claimants were put to strict proof of income of the deceased as stated in the petition.

(8) The Tribunal, upon considering the evidence, both oral and documentary, held that the accident was caused due to the rash and negligent manner of driving of the car by the 4th respondent herein. On the question of quantum, the Tribunal found that the income of the deceased was Rs.15,331/- per month. Since 1/3 rd of the income is being paid to the family as Fami