J U D G M E N T

The Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act, challenging the order of the Motor Accident Claims Tribunal cum VI Additional District Court, Madurai made in M.C.O.P.No.1115 of 2005, dated 11.03.2015 .

2.The Appellant/insurer, who was made liable to pay compensation of Rs.9,55,082.51/- with interest at 7.5% per annum to the claimants, the legal heirs of the deceased Saravanakumar, who died in an accident occurred on 01.04.2004, challenged the liability mulcted on it and also the quantum awarded at by the Tribunal.

3.The case of the claimants is that on 01.04.2004 at about

01.00 pm, when the deceased Saravanakumar was travelling in a two wheeler Hero Honda bearing Registration No.TN 67 X 5761 as a pillion rider from Rajapalayam to Sivakasi Main Road and at the place nearby S bend of Rajapalayam, the rider of the two wheeler drove the vehicle in a rash and negligent manner and dashed against the parapet wall of the bridge, that all of them fell down in the 15 feet pit, that the pillion rider Saravanakumar has sustained serious injuries and later succumbed to the injures at the hospital, that the accident was occurred only due to the rash and negligent driving of the two wheeler rider and that therefore, a case has been registered against him in Crime No.240 of 2004 of Rajapalayam Police Station under Section 279, 377, 398 and 304 IPC and the criminal case is pending on the file of the Court of Judicial Magistrate, Rajapalayam.

4.It is their further case that the deceased Saravanakumar was aged

20 years at the time of accident, that he was studying second year B.SC in Ayyanar Nadar College, Sivakasi at that time, that they have lost their main member of the family and that since the two wheeler was owned by the second respondent/first respondent and the same was insured with the Appellant, both are jointly and severally liable for the claim.

5.The defence of the Appellant/Insurer is that the Insurance Policy does not cover the risk of pillion rider and no additional premium has been paid to cover the risk of the pillion rider, that the rider of the two wheeler has no effective driving license on the date of accident, that totally four persons have travelled in the two wheeler at the time of accident and the accident was occurred only due to the negligence of the pillion rider of the two wheeler and that therefore, the insurer is not liable for the claim.

6.During enquiry before the tribunal, the claimants have examined the second claimant Karuppiah and one Raj kumar alleged to be the occurrence witness as P.W.1 and P.W.2 respectively and exhibited nine documents as Ex.P.1 to Ex.P.9. The second respondent/first respondent owner of the two wheeler had remained ex-parte. On the side of the Appellant/insurer, they have examined their Executive Officer, Arumugam as R.W.1 and exhibited the copy of the Insurance Policy as Ex.R.1.

7.Though the claimants have filed their claim petition under Section 166 as well as under section 163(A) of Motor Vehicles Act, they have chosen to participate in the enquiry as if the petition is filed under Section 166 of Motor Vehicles Act and the trial Court has also proceeded as if the petition is filed under Section 166 of the Motor Vehicles Act.

8.The tribunal upon considering the evidence, both oral and documentary, has passed the impugned award, dated 11.03.2015, holding that the two wheeler rider was responsible for the accident and directing the Appellant/insurer to pay the award to the claimants and then to recover the same from the owner of the offending vehicle. Aggrieved by the said award, the insurer has filed the appeal now under challenge.

9.Though the appellant/Insurer has taken a plea in the counter statement as well as in the appeal memorandum that there was no insurance coverage for the pillion riders and as such, insurer is not liable for the claim, the same was not pressed into service. Moreover, the learned counsel for the appellant would su