The court upheld the tribunal's finding that the JCB was involved in the accident and that the driver had a valid license for the vehicle's classification.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1998, to set aside the judgment and decree dated 13.02.2009 in MCOP.No.107 of 2003 on the file of the Principal Subordinate Judge/Principal Motor Accident Claims Tribunal, Nagercoil.)

The above appeal has been filed by the insurance company challenging the award passed by the Principal Motor Claims Tribunal, Nagercoil in MCOP.No.107 of 2003 on the ground of non involvement of vehicle, liability and quantum.

2. According to the injured claimant, he is a tapper in a rubber estate and when he was walking towards Karavilagam at 7.40 a.m on 12.01.2003, a JCB driven by the first respondent, owned by the second respondent and insured with the third respondent had dashed against him on his back and he sustained serious injuries.

3. According to the claimant, he was admitted as an inpatient from 12.01.2003 to 26.01.2003 and a major surgery was conducted over his right thigh by fixing plates and he was constrained to be on bed rest for three months. He had spent a sum of Rs.5,90,000/- towards medical expenses. According to the claimant, his right leg is shortened by 4 c.m and he is unable to walk freely and his disability is more than 50%. The claimant had further contended that the police officials have registered an F.I.R in Crime No.29 of 2003. The claimant had prayed for a sum of Rs.3,00,000/- as compensation.

4. The driver and owner of the alleged offending vehicle have remained exparte and the insurance company has filed a counter contending as follows:

(a). The second respondent in the claim petition is the owner of three JCBs. Out of which, two of them alone are insured. The uninsured vehicle met with an accident. However, it was set up as if the insured vehicle was involved in the accident.

(b). The injured claimant was not a pedestrian but he was travelling on the side of the driver as a cleaner. The seating capacity of the JCB is just one and therefore, the injured claimant was an un-authorised occupant of the JCB and therefore, he had jumped out of the JCB which has resulted for the injuries. Therefore, the insurance company is not liable to pay any compensation.

(c). The JCB is a heavy vehicle and the driver of the JCB namely the first respondent was only having an LMV licence with a badge and therefore, it is a case of clear violation of the policy condition.

(d). The JCB is a slow moving vehicle and therefore, the allegation of rash and negligent driving on the part of the JCB driver is not legally sustainable.

4A. The injured claimant had examined himself as PW1 and the rubber estate owner as PW2 and the doctor who had treated him as PW3. On the side of the respondent, the insurance company official was examined as RW1, the investigating officer appointed by the insurance company was examined as RW2 and the motor vehicle inspector was examined as RW3. The claimant had filed Exhibits P1 to P14 to establish his injuries and the manner of accident. The respondent had filed Exhibits R1 to R7 in order to establish the investigation report, driving licence of the JCB driver and the insurance policy.

5. The Tribunal after considering the oral and documentary evidence on the side of both the parties, had arrived at a finding that the JCB with Registration No.TN-74-Y-5369 alone was involved in the accident on the ground that the insurance company has not produced any material to establish the fact that some other vehicle was involved in the said accident. The Tribunal further found that the FIR which was registered without any delay, indicates the number of the offending vehicle.

6. The Tribunal further found that the unladen weight of the JCB is 6910 kgs and therefore, it could be classified only as a light motor vehicle and the driver of the vehicle was having an effective driving licence to drive the light mother vehicle at that point of time and rejected