JUDGMENT

(Judgment of the Court was delivered by V.M.VELUMANI,J.)

The Civil Miscellaneous Appeal is filed challenging the portion of the award, dismissing the claim petition as against the Insurance Company from its liability, passed by the Tribunal dated 06.02.2017 made in M.C.O.P.No.80 of 2011 on the file of Motor Accident Claims Tribunal, I Additional District and Sessions Court, Vellore.

2.The appellants are claimants in M.C.O.P.No.80 of 2011 on the file of Motor Accident Claims Tribunal, I Additional District and Sessions Court, Vellore. They filed the said claim petition claiming a sum of Rs.39,71,000/- as compensation for the death of one Senthil @ Senthilkumar, who died in the accident that took place on 25.01.2009.

3.According to the appellants, on the date of accident i.e., on 25.01.2009, at about 17.30 hours, while the deceased Senthil @ Senthilkumar along with one Rajendran was travelling in a Maruthi car bearing Registration No.TN-04-C-9272 on Chennai to Bangalore National Highways Road, near Kilambi Koot Road, the driver of the car drove the same in a rash and negligent manner, dashed against the small bridge on the left side of the road and caused the accident. Due to the said impact, both the deceased Senthil @ Senthilkumar and the said Rajendran died on the spot. Therefore, the appellants filed the above claim petition claiming compensation against the respondents, who are owner and insurer of the car respectively.

4.The 1st respondent, owner of the car remained exparte before the Tribunal.

5.The 2nd respondent/Insurance Company insurer of the car filed counter statement denying the averments made in the claim petition and stated that driver of the car viz., Rajalingam also died in the accident and hence, the Police closed the investigation. As per the Police investigation, the deceased purchased the car from the 1st respondent. Both the deceased Senthilkumar and Rajendran travelled in the said car as paid passengers. As per the R.C. Book, only four persons are allowed to travel in the car including driver, but at the time of accident, five persons travelled in the car, which is in violation of policy conditions. Therefore, the 2nd respondent/Insurance Company is not liable to pay any compensation to the appellants. In any event, the compensation claimed by the appellants is excessive and prayed for dismissal of the claim petition.

6.The 2nd respondent/Insurance Company filed additional counter statement and stated that the 1st respondent insured the offending Maruthi car covering liability only with fire and theft. The 1st respondent has not taken package policy from the 2nd respondent. The 1st respondent has not paid any extra premium to cover the occupants of the car and prayed for dismissal of the claim petition.

7.Before the Tribunal, the 1st appellant, wife of the deceased Senthilkumar, examined herself as P.W.1, one Gnanakirubakaran, co-employer of the deceased was examined as P.W.2, wife of deceased Rajendran (1st petitioner in the connected M.C.O.P.No.199 of 2012) was examined as P.W.3 and one Vimalkumar, eye-witness to the accident was examined as P.W.4 and 14 documents were marked as Exs.P1 to P14. The 2nd respondent/Insurance Company examined one Swamykannu, Junior Assistant of Insurance Company as R.W.1 and marked 7 documents as Exs.R1 to R7. The Court documents were marked as Exs.X1 to X4.

8.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by Rajalingam, the driver of the car belonging to the 1st respondent and directed the 1st respondent to pay a sum of Rs.39,01,605/- as compensation to the appellants and dismissed the claim petition as against the 2nd respondent/Insurance Company.

9.Challenging the portion of award dismissing the claim petition as against the 2nd respondent/Insurance Company, the appellants have come out with the present appeal.

10.The learned counsel appearing for the appellants contended that the Tri