JUDGMENT

This Civil Miscellaneous Appeal has been filed against the award passed in M.C.O.P.No.28 of 2009 dated 17.02.2011, on the file of the Motor Accident Claims Tribunal, Sub Court, Uthamapalayam.

2.The appellant herein is the second respondent, the first respondent herein is the claimant and the second respondent herein is the first respondent in the claim petition. The first respondent herein has filed a claim petition in M.C.O.P.No.28 of 2009, claiming compensation for the injuries sustained by him, in an accident that took place on 19.04.2008. The Tribunal has awarded a sum of Rs.63,000/- (Rupees Sixty Three Thousand only) as compensation. Against which, the appellant has preferred this appeal.

3.Brief substance of the claim petition in M.C.O.P.No.28 of 2009 is as follows:

On 19.04.2008, at about 09.30 a.m., when the claimant and five others travelled in a mini door auto bearing registration No.TN-60-D-8592 that belong to the second respondent, the driver of the auto by name Chelladurai drove the vehicle in a rash and negligent manner and capsized the vehicle. The petitioner sustained injuries and he claimed a sum of Rs.1,00,000/- (Rupees One Lakh only) as compensation.

4.Brief substance of the counter filed by the second respondent therein is as follows:

The petitioner and others travelled in a goods vehicle as unauthorized passengers. The mini door auto was meant only to transport goods. The petitioner and others travelled in a goods carrier against the traffic rules. Since the policy conditions are violated, the second respondent is not liable to pay compensation to the petitioner.

5.The first respondent was set as exparte. On the side of the claimant, two witnesses were examined and six documents were marked. On the side of the respondents, four witnesses were examined and three documents were marked and one witness document was marked. After trial, the Tribunal has awarded a sum of Rs.63,000/- (Rupees Sixty Three Thousand only) as compensation to be paid by the second respondent and the second respondent is entitled to recover the same from the owner of the vehicle. Against which, the appellant has preferred this Civil Miscellaneous Appeal.

6.On the side of the appellant, it is stated that the Tribunal was not justified in directing the appellant to pay the compensation at the first instance and to recover the same from the owner of the vehicle. The vehicle was a goods carrier. The injured claimant travelled in the goods carrier along with other passengers as gracious passengers. They are not covered by the policy of insurance under Section 147 of Motor Vehicle Act. The Tribunal failed to consider that there is no coverage for the injured claimant, who is an unauthorized passenger. An unauthorized passenger is not a third party in the eye of law. The direction for pay and recover is not applicable to an unauthorized passenger.

7.In support of this contention, a judgment of this Court in the case of Bharathi AXA General Insurance Co. Ltd., and Others v. Aandi and others reported in 2018 (2) TN MAC 731 is cited. The learned counsel for the appellant would rely upon another judgment of this Court in the case of Branch Manager, United India Insurance Co. Ltd., v. Nagammal and two others reported in 2009 (1)

CTC 1.

8.The admitted case of the first respondent is that the first respondent and others travelled in a goods carrier. Only on the basis of fact that there was no badge endorsement for the driver of the vehicle, the Tribunal has directed for pay and recover. It is seen that the Tribunal failed to consider that the first respondent and others travelled in the vehicle only as gracious passengers. The Hon'ble Supreme Court has held that in case of injuries of gracious passengers, the insurance company is not liable to pay compensation.

9.In view of the same, the order of the Tribunal is modified to the effect that the insurance company is exonerated from paying compensation. The claimant is entitled to get compensation only f