JUDGMENT :

R. POORNIMA, J.

1. These Civil Miscellaneous Appeals are directed against the common award passed in MCOP Nos. 91 to 92 of 2006, dated 29/02/2012 on the file of the Motor Accidents Claim Tribunal-cum-Chief Judicial Magistrate, Trichirappalli.

2. The brief case of the claimants are as follows:-

On 17/01/2005 at about 07.00 am, the claimants along with few others, were standing on the extreme left side of the road near Vairampatti for their work. At that time, the driver of the Mahendra Van bearing Registration No.TN-45-AB-9756 drove the vehicle in a rash and negligent manner and dashed against the claimants. The vehicle then, capsized in which process, the claimants and others sustained multiple injuries all over the body including the fracture injuries. They were immediately, admitted in the Manapparai Government Hospital, on 17/01/2025 and thereafter, underwent treatment in various private hospitals. Hence, all claim petitions have been filed by the claimants seeking compensation for the injuries sustained by them in the alleged accident.

3. The 1^st respondent the owner of the vehicle remained ex-parte before the Tribunal. The claim petitions were resisted by the 2^nd respondent Insurance Company by contending that the claimants and others were travelling in the 1^st respondent vehicle for harvesting the crops. The vehicle involved in the accident is a goods carriage having a loading capacity of only 650 kgs. However, the claimants and others (20 members) were travelled the vehicle totally 1100 kgs., at the time of accident. Due to such overloading the accident occurred. Therefore, the 1^st respondent violated the terms and conditions of the policy and hence, the insurance company is not liable to pay the compensation to the claimants.

4. Before the Tribunal, on the side of the claimants, three witnesses were examined as PW1 to PW3 and 10 documents were marked as Ex.P1 to Ex.P10. On the side of the respondents, 3 witnesses were examined as RW1 to RW3 and 2 documents were marked as Ex.R1 and Ex.R2.

5. The Tribunal, after analysing the oral and documentary evidence, awarded a sum of each Rs.80,000/- to the claimants in respect of MCOP(MD)Nos.90 and 91 of 2027 and Rs.65,000/- in respect of MCOP No.92 of 2006 and directed the 2^nd respondent Insurance Company to pay the award amount and then recover the same from the 1^st respondent/vehicle owner.

6. Aggrieved over the common award of the Tribunal, these Civil Miscellaneous Appeals have been preferred by the appellant.

7. The learned counsel for the appellant insurance company contended that the claimants travelled in the goods vehicle with 12 persons as gratuitous passengers. Even as per the FIR, 23 persons had travelled in the said vehicle and met with an accident. Since the Insurance Policy does not cover gratuitous passengers travelling in the goods vehicle they cannot be treated as third parties. Therefore, there is no statutory coverage in the Motor Vehicles Act. It is further submitted that the Tribunal accepted the contention of the Insurance Company and held that the claimants are gratuitous passengers travelled in the goods vehicle. However, the Tribunal erroneously ordered pay and recovery theory, by wrongly relying upon the decision of this Court, which is not applicable to gratuitous passenger. Hence, prayed for allowing the appeals by setting aside the common award passed by the Tribunal.

8. The learned counsel appearing for the 1st respondent/claimant made their submission in support of the findings of the Tribunal and prayed for dismissal of the appeals.

9. Heard the learned Counsel appearing on either side and perused the materials available on record.

10. Now, this Court has to decide whether the order of the Tribunal is sustainable or liable to be set aside?

11. Point :

In the present, case, an FIR which was lodged by Chinnappa, and registered in crime No.16 of 2005 dated 17.1.2005 by Valanadu Police Station, against driver Balu @ Balakrishnan of Mahindra & Manindra Pi