The main legal point established in the judgment is the application of the 'pay and recover' principle in determining the liability of the insurance company and the owner of the car in a road transport accident.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award dated 25.01.2022 passed in MCOP No.934 of 2019 on the file of the Motor Accident Claims Tribunal [Special District Court], Krishnagiri.     This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 to enhance the compensation amount and fix the entire liability on the 2nd respondent in the judgment dated 25.01.2022 passed in MCOP No.934 of 2019 on the file of the Motor Accident Claims Tribunal [Special District Court], Krishnagiri.)

Common Judgment:

1. Challenging the award of the Motor Accident Claims Tribunal (Special District Judge), Krishnagiri, vide judgment and decree dated 25.01.2022 in MCOP No.934 of 2019, both on the point of quantum as well as on negligence, the 1st respondent-Owner of the offending vehicle has filed CMA No.2706 of 2022, while, the claim petitioners/legal representatives of the deceased Sadhasivam, who died in the road transport accident on 28.12.2018, have filed CMA No.2650 of 2022, seeking enhancement of the compensation awarded and also to fix the entire liability on the 2nd respondent-Insurance company.

2. By consent, both Civil Miscellaneous Appeals are taken up together and disposed of by the following common judgment.

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

4. Heard the learned counsel on either side and perused the documents.

5. Before the claims tribunal, the 1st claim petitioner has examined herself as PW1 and an eye witness has been examined as PW2. Ex.P1 to Ex.P6 were marked. On the side of the 1st respondent/owner of the offending vehicle, RW1 was examined and Ex.R1-copy of the driving licence of the driver of the 1st respondent, was marked. On the side of the 2nd respondent viz., the Insurance company, RW2- Junior Assistant from the RTO office, Krishnagiri; RW3-Superintendent from RTO Office, Vaniyampadi and RW4- Legal Officer of the 2nd respondent Insurance company, were examined and Ex.R2 to Ex.R7 were marked.

6. Ex.R2 is the true copy of the Check Report for the Auto; Ex.R4 is the xerox copy of the Motor Vehicles Inspector Report for the Auto; and Ex.R7 is the true copy of the Insurance Policy of the 1st respondent''s vehicle.

7. It is the admitted case of both the parties that the vehicles involved in the accident are a car bearing Regn.No.TN03N1818/owned by the 1st respondent and an Auto bearing Regn.No.TN23-BK-2570. The manner of the accident were denied by the 1st respondent/owner of the vehicle.

8. It is the specific case of the claim petitioner as PW1 that the accident has taken place due to the rash and negligent driving of the driver of the car owned by the 1st respondent and insured with the 2nd respondent- Insurance Company.

9. The deceased is said to have travelled in the share-auto, which was driven by one driver Sudhagaran and in the said share-auto, the deceased was one among 12 persons i.e., more than the permitted capacity and hence, he is said to be treated as a ''gratuitous passenger'', as found in the counter.

10. According to the 1st respondent/owner of the offending vehicle, the driver of the share-auto viz., Sudhagaran, does not have any valid driving licence and hence, he is rash and negligent. In this regard, one of the occurrence witness PW2 was examined by him. On a close perusal of the Ex.R3 and Ex.R4, on the date of the accident, the driver of the Auto does not possess any valid driving licence. The owner of the auto and the insurer of the auto, were not added as a party. It is represented by both the counsel that the Auto does not have any insurance coverage and the driver does not possess valid driving licence.

11. Ex.P1 is the FIR and PW2 is the version of the occurrence witness. The claims tribunal taking note of the evidence of PW2, coupled with Ex.P1, has come to the conclusion that the driver of the car owned by the 1st respondent in