J U D G M E N T

The Civil Miscellaneous Appeal is directed against the award passed in M.C.O.P.No.15 of 2015, dated 07.02.2019, on the file of the Motor Accidents Claims Tribunal/II Additional Sub-Judge, Nagercoil.

2. The appellant/insurer, who was made liable to pay compensation of Rs.5,84,800/- with interest at 7.5% per annum to the respondents 1 to 3/claimants for the death of Joylet Jancy, consequent to an accident occurred on 18.02.2014, challenged the liability mulcted on it.

3. The case of the claimants is that on 18.02.2014, the deceased Joylet Jancy was travelling as a pillion rider in a Motorcycle bearing Registration No.TN-72-AJ-3992, driven by her brother-in-law Rajan Babu and when the two wheeler was proceeding to Nagercoil from Asaripallam Road to Palpannai Junction via Nadukkattu Essaki Amman temple and at about 20.30 hours a stray dog jumped into the bike causing the rider Rajan Babu to lose control of the bike and both of them fell down; that that the said Joylet Jancy has suffered multiple injuries and she was immediately taken to Mathias Hospital and thereafter, she was referred to Muthu Neruo Hospital and despite treatment, she succumbed to the injuries.

4. It is their further case that the two wheeler bearing Registration No.TN-72-AJ-3992 was owned by Rajan Babu brother-in-law of the deceased and that the same was insured with the appellant/second respondent and as such, the respondents 1 and 2 are liable for the claim.

5. The first respondent has filed a counter statement reiterating the contentions raised in the claim statement with regard to the mode of accident and further stated that the accident was caused neither by the first respondent nor any mechanic defect of the motorcycle; that the first respondent lost the control of the vehicle only due to the stray dog jumped in front of the motorcycle and that since the first respondent's vehicle was duly insured with the second respondent, the second respondent is liable for the claim, if any.

6. The defence of the appellant/second respondent is that FIR was registered against the driver of the lorry; that the mode of accident alleged by the claimants and the first respondent is not correct; that the claimants are duty bound to trace out the lorry and other particulars with regard to the lorry; that the claim petition without impleading the owner and the insurer of the lorry is legally not maintainable and that therefore, the appellant/second respondent is not liable for the claim.

7. During enquiry, the claimants have examined the first claimant as P.W.1 and two other witnesses as P.W.2 and P.W.3 and exhibited eight documents as Ex.P.1 to Ex.P.8. The second respondent insurer has examined Thiru.Nagarajan, Administrative Officer, as R.W.1 and exhibited insurance police as Ex.R.1. The first respondent has adduced neither oral nor documentary evidence.

8. The learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, has passed the impugned judgment, dated 07.02.2019, holding that the accident was occurred only due to the rash and negligent driving of the first respondent and that the policy is a comprehensive policy, directed the appellant/insurer to pay compensation of Rs.5,84,800/- with interest and costs. Aggrieved by the impugned award, the insurer has preferred the present appeal.

9. The learned counsel for the appellant would submit that the award fastening liability on the insurer is arbitrary; that the policy covers a limited liability of an unnamed passenger i.e., pillion rider, which is at a cap of Rs.1,00,000/- ; that the Tribunal has awarded unlimited, but fault liability, which is excessive by Rs.4,84,800/-; that the liability of the insurer under the package policy on pillion rider/passenger is limited under Section 147 of the Motor Vehicles Act as there is a contract qua contract, which means the liability thereof on separate terms and on payment of additional premium; that the cap o