The claim petition filed under Section 166 of the Motor Vehicles Act or even if it is filed under Section 163A of the Motor Vehicles Act is not legally maintainable.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, to set aside the judgment and decree dated 15.07.2020 passed in M.C.O.P.No.155 of 2016 on the file of the Sessions Judge, Mahila Court, Pudukkottai.)

1. The Civil Miscellaneous Appeal is directed against the award passed in M.C.O.P.No.155 of 2016 dated 15.07.2020 on the file of the Mahila Court, Pudukkottai.

2. The appellant/insurer, who was made liable to pay compensation of Rs.5,95,500/- with interest at 7.5% per annum to the respondents 1 and 2/claimants 1 and 2, who are the legal heirs of the deceased Murugesan, who died in an accident occurred on 08.10.2013, challenged the liability mulcted on it and also the quantum of compensation awarded at, by the Tribunal.

3. Admittedly, the respondents 1 and 2/claimants 1 and 2 are the parents and the respondents 3 and 4/claimants 3 and 4 are the brothers of the deceased Murugesan.

4. The case of the respondents 1 to 4/claimants is that on 08.10.2013 the deceased Murugesan had taken the two wheeler Hero Honda bearing Registration No.TN-55-AF-9004 belonging to the fifth respondent/first respondent and proceeded to Karambakudi in the morning and while he was returning back on the same day at about 07.30 p.m. near Vandan lodge bus stand, Puthur street, Karupusamy temple arch, due to strong winds and due to the distraction caused by the headlight of the vehicle, which came in the opposite direction, he suddenly dashed against the tree on the road side and sustained injuries on his head and other places of the body and died on the spot.

5. It is further case of the respondents 1 to 4/claimants that the deceased Murugesan was aged 31 years at the time of accident, that he had returned from Dubai 6 months prior to the accident and that he was doing agriculture and also milk vending business and was earning Rs.15,000/- per month.

6. The defence of the appellant/insurer is that the deceased Murugesan was not possessing a valid driving licence at the time of accident, that the fifth respondent/owner of the vehicle, without adhering to the stipulation of policy, had delivered his vehicle to the deceased Murugesan to drive the same, that the insurance policy of the vehicle involved in the accident does not cover personal risk of any driver of the vehicle, that there is no insurance cover for the rider of the two wheeler, that the deceased Murugesan, without knowing driving, had hit against the tamarind tree on the road side and that the appellant/insurer is not liable for the claim. It is their further defence that the compensation claimed and awarded is excessive and against all limits.

7. During enquiry, the respondents 1 to 4/claimants have examined the first respondent/first claimant Thanikodi as P.W.1 and one Manokaran as P.W.2 and exhibited 7 documents as Ex.P.1 to Ex.P.7. The appellant/ insurer has examined Special Sub Inspector of Police Tharmaraj as R.W.1 and exhibited the certified copy of the rough sketch prepared by the police as Ex.X1.

8. The learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, has passed the impugned award dated 15.07.2020 holding that the accident was occurred only due to the negligence of the deceased, that the deceased had no driving licence at the time of accident, that since there is policy violation, the respondents 1 to 4/claimants are not entitled to get 50% of the compensation on the ground of contributory negligence and that therefore, the appellant/insurer was directed to pay 50% of the award amount of Rs.5,95,500/- with interest and then to recover the same from the fifth respondent/owner of the vehicle. Aggrieved by the said award, the insurer has preferred the present appeal.

9. The points that arise for determination are : 1) Whether the Tribunal erred in applying the doctrine of pay and recovery, despite the finding of the Tribunal itself that the deceased is the tortfeasor and that the d