The doctrine of pay and recovery was applied in favor of the claimants, considering the expired Insurance Policy of the offending vehicle and the circumstances of the case.

JUDGMENT :

J. NISHA BANU, J.

PRAYER: This Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the award and decree dated 21.11.2013 made in M.A.C.T.O.P. No. 1383 of 2013 on the file of the Motor Accident Claims Tribunal, (Special Subordinate Judge) Tirupattur.

1. This Civil Miscellaneous Appeal has been filed by the Insurance Company, challenging the quantum of compensation and the liability fixed on the appellant/Insurance Company vide award dated 21.11.2013 made in M.A.C.T.O.P. No. 1383 of 2013 on the file of the Motor Accident Claims Tribunal, (Special Subordinate Judge) Tirupattur.

2. The claimants/respondents No. 2 to 4 filed a claim petition in M.A.C.T.O.P. No. 1383 of 2013 on the file of the Motor Accident Claims Tribunal, (Special Subordinate Judge) Tirupattur, claiming a sum of Rs.10,00,000/- towards compensation for the death of one Elayaraja who died in the road accident which took place on 18.07.2010.

3. The factual matrix of the case is as follows:

The deceased Elayaraja was aged about 27 years old and was earning a sum of Rs.10,000/- as auto driver at the time of accident. The 1st respondent herein is the wife, the 2nd and 3rd respondents are the minor children and the 4th respondent is the mother of the deceased Elayaraja. On 18.07.2010 at about 10:30 a.m. when the said Elayaraja was proceeding towards Vaniyambadi to Ambur National highway near Periyanguppam junction in his Auto bearing Reg.No. TN-23-AB-7317, a Hero Honda motorcycle bearing Reg. No. TN-29-X 1086 which was driven by the fifth respondent in a rash and negligent manner, dashed against the auto driven by the deceased. Due to the said impact, the deceased Elayaraja sustained grievous injuries and he was taken to Government Hospital, Ambur, for treatment, but he died due to fatal injuries. The dependants of the deceased viz., wife, children and mother had filed a claim petition in M.A.C.T.O.P. No. 1383 of 2013, seeking compensation for a sum of Rs.10,00,000/- before the learned Special Subordinate Judge, Motor Accident Claims Tribunal, Tirupattur.

4. The appellant-Insurance Company, filed counter statement and denied all the averments made by the claimants in the claim petition. According to the appellant/Insurance Company, the accident had occurred only due to negligence of the 5th respondent. He did not possess valid driving licence and there was no Insurance cover for the motorcycle on the date of accident. Hence, the appellant-Insurance Company need not indemnify the 5th respondent. In any event, the total compensation awarded by the Tribunal is excessive and prayed for setting aside the award of the Tribunal.

5. Before the Tribunal, the first respondent examined herself as PW-1 and ten (10) documents were marked as Exs.P1 to P10 on the side of the claimants. On the side of the appellant/Insurance Company, one Mr. Gopal, an officer attached to the Insurance Company was examined as RW-1 and four documents were marked as Exs.R1 to R4 on the side of the appellant/Insurance Company.

6. The Tribunal, after considering the pleadings, oral and documentary evidence, held that the accident occurred due to the rash and negligent driving of the rider of the motorcycle belonging to the fifth respondent insured with the appellant/Insurance Company. The Tribunal has held that the Insurance Policy of the offending vehicle was valid from 18.07.2009 till midnight of 17.07.2010, whereas, the accident had happened on 18.07.2010 at 10.30 A.M. i.e. after almost 10 hours from the time of expiry of the Insurance Policy and has come to the conclusion that there was no valid Insurance cover for the offending vehicle at the time of the accident. Considering the pathetic situation of the Dependants of the deceased who lost their sole earning member of the family, the learned Judge has applied the doctrine of pay and recovery and granted a sum of Rs.7,48,500/- as total compensation and directed the appellant/Insurer of the motorcycle to pay the com