The principle of 'pay and recover' is applicable in motor accident claims involving gratuitous passengers in goods vehicles, requiring the insurance company to satisfy the award to the claimant first and subsequently recover the amount from the owner to fulfill the benevolent objectives of the governing legislation.

JUDGMENT :

P. VADAMALAI, J.

1. This Civil Miscellaneous Appeal is preferred against the judgment and decree 01.12.2020 passed in M.C.O.P.No.1090 of 2017 by the Motor Accident Claims Tribunal/I Additional District Judge, Tirunelveli.

2. The 2 respondent in M.C.O.P.No.1090 of 2017 is the appellant herein. The petitioner/claimant is the first respondent herein.

3. For the sake of convenience, the parties as arrayed in M.C.O.P. No. 1090 of 2017 are adopted hereunder.

4. The brief facts of the case:

On 01.04.2016 at about 9.00 a.m., the deceased minor Suryaprakash was travelling in the load auto bearing registration No.TN 74 U 7373, driven by his father Jeyaram, from Kayathar to Kadambur. While the said auto was running near Ahilandapuram Vilakku, the left side door of the load auto suddenly opened and the deceased minor Suryaprakash fell from the load auto. Due to the impact, the aforesaid minor Suryaprakash sustained multiple fatal injuries and died. An F.I.R. in Crime No.131 of 2016 was registered against the driver of the auto by the Kayathar police station. The auto belonged to the 1st respondent and the same was insured with the 2nd respondent. The father of the deceased minor died after the accident. Hence, the mother of the deceased minor Suryaprakash filed a claim petition seeking compensation of Rs.10,00,000/-.

5. The 2^nd respondent/Insurance Company objected to the claim petition by contending that the offending vehicle is a load auto, which does not have any permit to pick up passengers, and there is no insurance coverage for the occupant of the load auto. The driver of the vehicle violated the policy conditions, moreover, the driver of the load auto did not possess any valid driving licence. Hence, the 2^nd respondent/Insurance Company is not liable to pay any compensation. Therefore, the petitioner is not entitled to any claim from the 2nd respondent/Insurance Company.

6. Before the Tribunal, on the petitioner's side, two witnesses were examined as P.W.1 and P.W.2 and Ex.P.1 to Ex.P.8 were marked. On the respondents' side, three witnesses were examined as R.W.1 to R.W.3 and Ex.R.1 to Ex.R.3 were marked. In addition, Ex.X.1 to Ex.X.5 were also marked.

7. After hearing both sides and after considering the evidence, the Tribunal has passed the impugned award by holding that the driver of the 1^st respondent’s vehicle was responsible for the accident and the parents of the deceased minor Suryaprakash contributed their part of negligence and fixed 50% negligence on the part of the driver of the vehicle. The Tribunal awarded total compensation of Rs.9,60,000/-. The Tribunal has directed the 2^nd respondent/Insurance Company to pay 50% of the award amount at Rs.4,80,000/- and shall recover the same from the owner of the vehicle.

8. Aggrieved by the said award, the 2nd respondent/Insurance Company preferred this Civil Miscellaneous Appeal.

9. Heard both sides and perused the records in this Civil Miscellaneous Appeal.

10. The learned counsel appearing for the 2^nd respondent/Insurance Company has mainly argued that the offending vehicle is a load auto for the purpose of carrying commercial goods and the seating capacity is only one. But, at the time of the accident, the driver of the 1^st respondent’s vehicle allowed his wife, sister, and minor son (deceased herein) to travel as a gratuitous passengers. Moreover, the 1^st respondent/owner of the offending vehicle did not have any valid permit and fitness certificate to ply on the road and also the driver of the vehicle did not possess a valid driving license. The insurance policy is only third party co