J U D G M E N T

This Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company against the award dated 24.02.2012 made in M.C.O.P.No.287 of 2010 on the file of Motor Accident Claims Tribunal, Principal District Court, Namakkal.

2.The appellant/Insurance Company is the 3rd respondent in M.C.O.P.No.287 of 2010 on the file of Motor Accident Claims Tribunal, Principal District Court, Namakkal. The respondents 1 to 3 filed the said claim petition claiming a sum of Rs.10,00,000/- as compensation for the death of one Kavitha, who died in the accident that took place on 29.03.2010.

3.According to the respondents 1 to 3, on the date of accident i.e., on

29.03.2010 at about 12.15 p.m., while the deceased Kavitha was standing on the left side road with bi-cycle near old Ramesh theatre, Trichy Road, Namakkal, the driver of the lorry belonging to the respondents 4 & 5, which came in the opposite direction, driven by its driver in a rash and negligent manner, ran over the deceased and caused the accident. Due to the said impact, the deceased Kavitha died on the spot. Therefore, the respondents 1 to 3 filed the above claim petition claiming compensation against the respondents 4 & 5 and appellant/Insurance Company.

4.The 4th respondent, owner of the lorry, remained exparte before the Tribunal.

5.The appellant/Insurance Company filed counter statement denying the averments made in the claim petition and stated that the accident has occurred, when the deceased Kavitha suddenly crossed the road, without noticing the lorry. Therefore, the Tribunal ought to have fixed contributory negligence on the part of the deceased. The driver of the lorry did not possess valid driving license to drive the heavy motor vehicle and thereby, the respondents 4 & 5 violated the terms and policy conditions and hence, the appellant/Insurance Company is not liable to pay any compensation to the respondents 1 to 3. The appellant/Insurance Company has also denied the age, avocation and income of the deceased. In any event, the compensation claimed by the respondents 1 to 3 is excessive and prayed for dismissal of the claim petition.

6.Before the Tribunal, the 1st respondent, husband of the deceased, examined himself as P.W.1 and one Dhanapal, eye-witness to the accident, was examined as P.W.2 and marked seven documents as Exs.P1 to P7. The appellant/Insurance Company examined one M.Muralidharan, Assistant Manager of the appellant/Insurance Company as R.W.1 and marked two documents as Exs.R1 and R2.

7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the lorry belonging to the respondents 4 & 5 and directed the appellant/Insurance Company being insurer of the said lorry to pay a sum of Rs.7,20,000/- as compensation to the respondents 1 to 3 at the first instance and recover the same from the respondents 4 & 5/owners of the lorry, as the driver of the lorry did not possess valid driving license to drive the lorry.

8.Against the said award dated 24.02.2012 made in M.C.O.P.No.287 of

2010, granting compensation to the respondents 1 to 3, the appellant/Insurance Company has come out with the present appeal challenging the liability fastened on them as well as quantum of compensation granted by the Tribunal.

9.The learned counsel appearing for the appellant/Insurance Company contended that the driver of the lorry belonging to the respondents 4 & 5 did not possess valid driving license to drive the heavy motor vehicle at the time of accident and he has possessed driving license only to drive light motor vehicle. On the date of accident, the 5th respondent is the owner of the lorry, but the insurance policy stood in the name of the 4th respondent. The Tribunal erred in ordering pay and recovery and the Tribunal ought to have exonerated the appellant/Insurance Company from its liability. The monthly income of the deceased fixed by the Tribunal is on the higher side.