ORDER

Heard learned counsel appearing on either side.

2.This Civil Miscellaneous Appeal has been filed against the judgment and decree passed in M.C.O.P.No.149 of 2003 dated 21.11.2007 on the file of the Motor Accident Claims Tribunal, Devakottai.

3.The appellant herein is the second respondent, the respondent 1 to 5 herein are the petitioners/claimants and the 6th respondent herein is the first respondent in the claim petition. The respondents 1 to 5 herein have filed a claim petition in M.C.O.P.No.149 of 2003 claiming a sum of Rs.17,91,000/- (Rupees Seventeen Lakhs and Ninty One Thousand only) as compensation. The Tribunal has awarded a sum of Rs.3,00,300/- (Rupees Three Lakhs and Three Hundred only) as compensation. Against which, the appellant/insurance company has filed the present appeal.

4.A brief substance of the claim petition in M.C.O.P.No.149 of 2003 is as follows:

On 13.06.2003, at about 10 a.m., the deceased Kannusamy and Arulsamy and others collected Karuvellam wood from Serthani kanmoi and loaded the wooden logs in a lorry that belonging to the sixth respondent herein bearing the registration No.TN-65-7443. The deceased Kannusamy and one Pandi were sitting on the top of the wooden logs. One Solomon was driving the lorry in a rash and negligent manner and the deceased was thrown away from the lorry and he fell upon an electric wire and died on the spot. The deceased was working as a loadman. The accident took place due to the rash and negligent driving of the lorry driver. The respondents in the claim petition are liable to pay compensation of Rs.17,91,000/- (Rupees Seventeen Lakhs and Ninety One Thousand only).

5.The brief substance of the counter filed by the appellant herein is as follows:

The vehicle is only a goods vehicle. The deceased and one other person without hearing the advice of the driver, were travelling on the top of the vehicle and the deceased died due to electrocution. The death was due to the negligent act of the deceased and the lorry driver is not responsible for the accident. The age, profession and income of the deceased is to be proved by the claimants. It is not necessary for the appellant herein to pay any compensation to the claimants.

6.On the side of the claimants, three witnesses were examined as P.W.1 to P.W.3 and 6 documents were marked as Exs.P1 to P6. On the side respondents in the claim petition, one witness was examined as R.W.1 and one document was marked as Ex.R1. After considering both sides, the Tribunal awarded a sum of Rs.3,00,300/- (Rupees Three Lakhs and Three Hundred only) as compensation. Against which, the appellant/insurance company has preferred this appeal.

7.On the side of the appellant, it is stated that the Tribunal has failed to consider that the insured has violated the statutory provision of Section 238 of the Tamil Nadu Motor Vehicles Rules by allowing the deceased to travel on the top of the goods cabin. While the deceased was travelling on the top of the lorry, he was attacked by an electric wire and he died on the spot and that the negligence is only on the part of the deceased. The Tribunal has failed to consider the evidence of R.W.1 and the multiplier applied was wrong and prayed the award to be set aside. 8.On the side of the appellant, it is stated that the deceased was an unauthorized passenger in the goods vehicle who travelled on the top of the lorry. He fell down due to electrocution and not due to any other accident. The deceased was not a loadman and the findings of the Tribunal was wrong.

9.The learned counsel for the appellant would rely upon the judgment passed by this Court in the case of Bharati AXA General Insurance Co., Ltd., v. Aandi and others, reported in 2018 (2) TNMAC 731 (DB), wherein it is states as follows:

“Unauthorized passengers/gratuitous passengers in good vehicle – liability of insurer in respect of – whether insurer can be directed to pay and recover – insurance policy, a mandatory statutory requirement, required to cover only ce