JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, to set aside the award and decree dated 09.12.2011 made in M.C.O.P.No.53 of 2011 on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Theni.)

1. This Civil Miscellaneous Appeal is directed as against the judgment and award on certain counts passed by the learned Motor Accident Claims Tribunal cum Special Sub Court, at Tirunelveli in M.C.O.P.No.53 of 2011 dated 09.12.2011, by the appellant/second respondent/insurance company.

2. For the sake of convenience, the parties are addressed herein as per the rank in M.C.O.P.No.53 of 2011.

3. The brief facts leading to the filing of the Civil Miscellaneous Appeal is as follows:-

This is the case of injured. On 16.09.2004, the petitioner having attended her friend's marriage travelled in a van bearing registration No.TN-51-Y-7652 along with many others from her village. While the said van was returning from Srivilliputhur at about 04.45 p.m., at Periyur to Usilampatti road near Hanuman temple at P.Chettipatti Vilakku, the said van capsized upside down. As the result of which, the petitioner had sustained grievous injuries across her body including complete destruction of six of her tooth. A FIR in Crime No.450 of 2004 was registered by the jurisdictional Police against the driver of the van. Seeking a compensation of Rs.1,00,000/- for the injuries, the petitioner has filed the claim petition.

4. The first respondent is the owner of the van and the second respondent is the insurance company with which the van was insured. The second respondent had filed a counter refuting all the allegations set forth in the claim petition. It was also pleaded in the said counter that the driver of the first respondent was not in possession of a valid driving licence. It was also pleaded that the insured vehicle was a goods carrier and without the knowledge of the owner, the driver had allowed passengers including this petitioner to travel in the goods carriage for hire purpose. Hence, there was a violation of policy condition. That apart no premium was paid for the passengers by the first respondent. Hence, the second respondent's counsel categorically pleaded that it is not necessary to indemnify the first respondent.

5. The learned Tribunal had framed two issues. Two witnesses were examined P.W.1 and P.W.2 on the side of the petitioner and five documents were marked as Ex.P1 to Ex.P5 and two witnesses were examined R.W.1 and R.W.2 and three documents were marked as Ex.R1 to Ex.R3 on the side of the respondents. On the basis of oral and documentary evidence and arguments putforth by respective parties, the learned Tribunal has proceeded to conclude that the accident had happened due to the rash and negligent driving of the driver of the first respondent. The said conclusion was arrived by the learned Tribunal on the basis of the evidence deposed by the first respondent and also by the document Ex.R1 I.e. the insurance policy of the first respondent. Ex.R1 insurance policy of the vehicle involved in the accident and Ex.R2 is the RC book of the goods carrier and Ex.R3 is the permit of the goods carrier. Since the currency of the insurance policy which was marked as Ex.R1 was prevailing at the time of accident, the learned Tribunal passed order directing the second respondent to pay the compensation awarded and recover the same from the first respondent.

6. As far as the compensation is concerned, on the basis of disability certificate marked as Ex.P1 and X ray was marked as Ex.P5 and on the basis of the evidence of P.W.2, Dr.Pappusamy, the learned Tribunal proceed to fix the partial permanent disability of the petitioner as 25% and had passed an order of compensation of Rs.2,000/- per percentage at Rs.50,000/- and proceeded to pass an award under following heads:-