COMMON JUDGMENT

Since the issue arises in the appeals are one and the same, the same are disposed of by way of this common order.

2. The Insurance Company has come forward with these appeals, as against the judgment and decree dated 26.08.2013 in MCOP. Nos.49 and 50 of 2012 on the file of the Motor Accident Claims Tribunal, Perundurai (Sub-ordinate Court, Perundurai).

3. It is the case of the appellant that on 15.09.2011, the respective first respondent travelled in a Maruti Omni Van bearing Registration No.TN 39 C 5959, owned by the third respondent, which was driven by the second respondent and insured with the appellant insurance company to Tirupati. When they were travelleing near Palamner-Kuppam National Highways at about 5.00 am, the second respondent driven the vehicle in rash and negligent manner and dashed against the tamarind tree, which resulted in the respective first respondent in both the cases, have sustained grievous injuries and thereafter admitted in hospital and taken treatment. Thereafter, the first respondent have filed claim petitions before the Motor Accidents Claims Tribunal. The Tribunal considering the pleadings, oral and documentary evidence, passed award on 26.08.2013 in favour of the first respondent respondent. Aggrieved over the same, both the appeals have filed by the insurance company.

4.The learned counsel appearing for the appellant Insurance company submitted that the first respondent in both the cases have travelled in a van, which was owned by the third respondent and insured with the appellant. The third respondent is having Act policy and the injured are the occupant of the van. Since the injured persons were only an occupant and the policy was only an Act policy. As such, there is no coverage for the occupants/injured persons/first respondent of the van. Without considering the said fact, the Tribunal has awarded the compensation in favour of the first respondent, which is liable to be set aside.

5. The learned counsel further submitted that though the seating capacity of the van is 4 persons, at the relevant point of time, 6 persons have travelled in the van, on the sole ground, the appellant is not liable to pay compensation to the first respondent. The Tribunal ought to have treated the claimants as third parties and held that the insurance company should pay the award amount to the claimants and recover the same from the owner of the van. The principle of pay and recovery will not be applicable to the facts and circumstances of the case because there was no coverage n the policy for the occupants.

In this context, the learned counsel relied upon the decision of this Court in the case of New India Assurance Co. Ltd., Vs.S.Krishnasamy reported in 2015 (1) TNMAC 19 (DB).

6. Per contra, the learned counsel appearing for the first respondent contended that even though, the third respondent is having Act policy, the Tribunal, after analyzing the materials available on record and also the ruling cited on either side, has rightly awarded the quantum of compensation and hence, there is no need to interference with the same and therefore, appeal has to be dismissed.

7.Heard the learned counsel for the appellant as well as the learned counsel appearing for the first respondent and also perused the materials available on record. There is no representation on behalf of the respondents

1 & 2.

8. The facts of the case are not in dispute. Admittedly, the Maruti van was owned by the third respondent, which was driven by the second respondent. The first respondent, with the permission of the third respondent, who is the relative, proceeded to Tirupati for dharshan on 15.09.2011 and the said vehicle was involved in accident in a rash and negligent driving of the driver/second respondent.

9. The issue arises in these appeals is whether the policy taken by the third respondent is an ''Act policy'' or ''comprehensive policy''.

10. On perusal of the counter affidavit filed by the appellant Insurance company before t