The liability of the insurance company for compensation in cases involving unauthorized passengers in goods vehicles.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree made in M.C.O.P.No. 1271 of 2016, dated 28.08.2018, on the file of the Principal District Judge, Tirunelveli.)

1. This Civil Miscellaneous Appeal has been filed against the award, made in in M.C.O.P.No.1271 of 2016, dated 28.08.2018, on the file of the Principal District Judge, Tirunelveli. The appellant herein is the second respondent, the first respondent herein is the claimant and the second respondent herein is the first respondent in the original M.C.O.P. Petition.

2. A Brief substance of the claim petition, in M.C.O.P.No. 1271 of 2016, is as follows:

On 20.08.2016, at about 11.20 pm, when the deceased - Esakkiappan was travelling in a TATA Ace vehicle, bearing Registration No.TN – 07 – BK - 6123 that belonged to the first respondent along the Virudhunagar - Sattur road, the driver of the vehicle drove the vehicle in a rash and negligent manner, hit against the Mediation wall and the vehicle capsized on the road. The deceased sustained injuries, he was taken to TVMC Hospital, Palayamkottai, there he succumbed to the injuries and died on 23.08.2016. The deceased was aged about 25 years, he was a student of B.C.A and he was working as marketing staff and a computer operator in Idhayam Oil Company and was earning Rs.10,000/- per month. The petitioner is his dependant and she claimed a sum of Rs.20,00,000/- as compensation.

3. A brief substance of the counter filed by the first respondent, in M.C.O.P.No. 1271 of 2016, is as follows:-

The manner of accident as stated in petition is not correct. The deceased was a part time load man, working with the first respondent. The vehicle was insured with the second respondent at the time of accident. The respondent is not liable to pay compensation.

4. A brief substance of the counter filed by the second respondent in M.C.O.P.No. 1271 of 2016 is as follows:-

The age, income, occupation of the deceased are to be proved. At the time of accident, the deceased and four others travelled in the TATA Ace vehicle. The seating capacity of the vehicle is only for two persons. Only one person, excluding the driver can travel in the vehicle. The deceased and others travelled as unauthorized passengers. As per Section 147 of M.V.Act, the passenger in a goods vehicle is not entitled to claim compensation, the principle of pay and recover, under Sections 149(4) and 149(5) is not applicable. The owner alone is liable to pay compensation. Fitness certificate for the vehicle was not valid. There is violation of M.V.Rules.

5. Three (3) witnesses were examined, 2 documents were marked on the side of the petitioners. Two (2) witnesses were examined and 2 documents were marked on the side of the respondents. After considering both sides, the Tribunal has awarded a sum of Rs.6,73,000/- as compensation to be paid by the second respondent.

6. Against the award, the second respondent -appellant has preferred the appeal on the following grounds:-

The Tribunal has failed to consider that the vehicle was a goods vehicle, meant only for transporting goods. As per the F.I.R, the deceased and others, travelled in the backside portion of the vehicle. As per the pleadings in the claim petition, the deceased was working as a marketing staff and a computer operator in Idhayam Oil Company. The contention of the first respondent is that the deceased was a load man engaged by the owners of the goods. The deceased was the brother of the owner of the vehicle. The driver was the brother-in-law of the deceased. Even as per the F.I.R, the deceased and others travelled in the vehicle to attend the Kumbabishekam of their Kulatheivan at Kalapatti, Tirunelveli. Admittedly, there was no goods at the time of accident. The deceased was a gratuitous passenger. There is no policy coverage for the gratuitous passenger. The appellant is to be exonerated from t