J U D G M E N T

This appeal has been preferred by the claimant in MCOP No.81 of

2004 on the file of the Motor Accident Claims Tribunal/Chief Judicial Magistrate, Thoothukudi, whereby, the Tribunal disallowed the claim of the appellant. Pending appeal, the original claimant died, hence, his legal heirs have come on record.

2.The brief facts necessary for the disposal of this appeal would run thus:-

The original appellant (since deceased) is the owner of Mahindra Maxi-cab Van bearing Registration No.TN-69-F-1918. It is his case that in the year 2011, he purchased chassis of the van for Rs.3,45,000/- and thereafter, he spent Rs.1,60,000/- towards body built and other charges. On 17.04.2003, one Kuppusamy of Thoothukudi engaged the vehicle for hire to go to Viluppuram and the vehicle was driven by a valid licenced driver Anthony Siluvai. When it was proceeding near Sirukanoor on Trichy-Chennai main road, it is alleged that an Omni bus owned by the first respondent and insured with the second respondent bearing Registration No.TN-09-H-9851 came in a high speed and rammed the Maxi-cab Van. In the impact, the driver Anthony Siluvai, who is the son of the appellant, and some of the passengers died on the spot while others sustained injuries. That apart, an extensive damage was caused to the Van.

3.The claim petition was filed by the appellant seeking compensation of Rs.3,77,353/- contending that the value of the vehicle was Rs.4,50,000/- and the third respondent, who is the insurer of the appellant's vehicle paid Rs.72,647/- under Non-Standard basis and after deducting 20% towards depreciation, he is entitled for Rs.3,77,353/-.

4.The claim petition was resisted by the second respondent contending that the accident occurred due to the negligence of the driver of the Van; that Omni bus had Permit to ply in the Union Territory of Puducherry, but was used in the State of Tamil Nadu and that the Permit capacity of the Van was 12, but it was carrying more passengers at the time of the accident and hence, the insurance company/second respondent is not liable to pay any compensation.

5.In addition to the objections raised by the second respondent, in the counter filed by the third respondent, it is stated that the appellant claimed damages on Non-Standard basis and received the amount of Rs.72,647/-, hence, the claim petition against the third respondent is not maintainable.

6.It is relevant to note that MCOP No.127 of 2007 was also filed by the appellant claiming compensation of Rs.10,00,000/- for the death of his son Anthony Siluvai. Both the claim petitions were taken up together. The parties had let in oral and documentary evidence. On appreciation of evidence adduced by the parties, the Tribunal came to the conclusion that the driver of the omni bus was responsible for the accident and awarded compensation of Rs.3,53,500/- along with interest at the rate of 7.5% per annum in MCOP No.127 of 2007, while dismissing MCOP No.81 of 2004.

7.It appears that the finding on negligence recorded by the Tribunal in the Common Judgment is not challenged by any of the parties and hence, it becomes final. In the present appeal, the appellant herein has called in question the finding of the Tribunal on other issues in MCOP No.81 of 2004.

8.Mr.C.Dhanaseelan, learned counsel appearing for the appellant submitted that the Tribunal ought to have granted compensation on merit instead of dismissing the case by citing Ex.R.2. It is the submission of the learned counsel that the finding of the Tribunal that the appellant received compensation of Rs.72,647/- on Non-Standard basis in full settlement of the compensation for the damage caused to the Van is without any basis and the receipt of the amount on Non-Standard basis cannot be a waiver of the appellant's right to get full compensation. It is also contended that the Tribunal committed error in dismissing the claim petition against the respondents 1 and 2 even after recording a finding that the driver of the Omni bu