JUDGMENT

The appeal has been filed by the appellant/insurance company challenging the direction to indemnify the first respondent, owner of the vehicle as per the decree and Judgement passed in MCOP.No.85 of 2018 dated 11.12.2020 on the file of the Motor Accident Claims Tribunal (Special Sub Court No.1), Villupuram.

2.Facts leading to the filing of this appeal is as follows; the claimant namely Babu was working under the first respondent, owner of the JCB earth mover as a cleaner. On 19.03.2017, at about 2.30 p.m. the operator of the JCB earth mover was doing digging work in the Panchayat well at Kadayam Village. While digging the earth, the claimant was also in the vehicle assisting the operator and suddenly the vehicle lost its balance and fell into the well, which resulted in causing injuries to the claimant herein. For the injuries sustained by the claimant in the said accident, he has come forward with the claim petition seeking compensation of Rs.30,00,000/-.

3.The first respondent, owner of the earth mover has not contested the claim petition before the Tribunal. The second respondent/insurance company contested the claim and disputed the engagement of the claimant as a cleaner. It was also contended that the operator of the JCB did not possess a valid license and hence, there is violation of policy condition and the insurance company is not liable to pay compensation.

4.Based on the evidence placed on record, the Tribunal has held that the JCB operator has negligently operated the vehicle, which resulted in the accident. The claimant was engaged as a cleaner and hence, he is covered as per the insurance policy for getting compensation. The Tribunal also quantified the compensation and awarded Rs.4,43,000/- as compensation along with interest at the rate of 7.5% from the date of petition till the date of realization. Aggrieved by the direction to indemnify the first respondent, the insurance company filed this appeal.

5.The learned counsel for the appellant/insurance company submitted that it is the admitted case of the claimant that he was engaged to assist the operator of the JCB only on the date of occurrence. He was not a cleaner as claimed by him. He also relied on the recitals in the First Information Report, and evidence on RW1 to show that the driver of the first respondent was not authorized to drive the JCB and hence, there is also a violation of the policy condition and prays to set aside the award of the Tribunal or to absolve them from indemnifying the first respondent.

6.Per contra, the learned counsel for the claimant submits that it is the case of the claimant that he was a cleaner working under the first respondent/owner of the vehicle to assist the JCB driver. This aspect has been accepted by the Tribunal and the compensation has been awarded.

Hence, there is no infirmity in the award and prays to confirm the same.

7.This Court considered the materials placed by both sides and perused the records.

8.The claimant examined himself as PW1 and stated that he was a cleaner, working under the first respondent herein. He used to assist the operator of the JCB at the time of earth moving work. On the date of occurrence, also he was assisting the JCB operator by sitting on the JCB earth mover. He further states that he was working under him for nearly one year.

9.This evidence has been impeached by the appellant insurance company by relying on the recitals in Ext.P1 - FIR. In which, the wife of the claimant has stated that on 19.03.2017 at about 2.30 p.m., the Panchayat had engaged a JCB operator for leveling the sand around the well of the Panchayat. While doing so, her husband Babu was also assisting the JCB operator, that during that process, the JCB operator lost control of the machine and the earth mover fell down in the well, which resulted in causing the injuries.

10.The above recitals shows that her husband was engaged for attending this particular work and he was not working as a cleaner with the first responde