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Judgment
S. Vimala, J.—This Appeal is filed by the Insurance Company, challenging the liability to pay the compensation. The claimant/Srinivasan, aged 37 years, a cleaner, earning a sum of Rs. 5,000/- per month, met with an accident on 19.06.2007 and in respect of the injuries sustained, he filed a claim petition, claiming a sum of Rs. 2,00,000/- as compensation.
The claim was disputed by the Insurance Company on the ground that the Minidor Auto involved in the accident, bearing Registration No. TN31-D-9760, was a goods carrier vehicle and there is no permission to carry any passenger and therefore, the claimant, being an unauthorized passenger, is not entitled to make any claim as against the Insurance Company. It is also contended that there was an unknown lorry, which was involved in the accident and the unknown lorry was responsible for the cause of accident.
The Tribunal, on a consideration of the materials placed before it, came to the conclusion that the Insurance Company is liable to pay compensation of Rs. 1,40,500/-, but with liberty to recover it from the owner. The Tribunal has given a finding that the first respondent/owner has violated the terms and conditions of the policy, by allowing the driver, who possessed only an ineffective driving licence, i.e., without any badge, to drive the goods carrier. As there is violation of conditions with regard to the driving licence, the Insurance Company was given liberty to recover the compensation from the owner.
But the question is, whether the Insurance Company is liable to pay the compensation at all, under the terms and conditions of the policy.
The Registration Certificate of the vehicle marked as Ex. R-3 will prove that the offending vehicle is the goods carrier vehicle and the seating capacity of the vehicle is only two. No premium has been paid for coverage of any passengers. At the time of the accident, eight passengers had traveled in the goods carrier vehicle, though the seating capacity is only two, which included the driver also.
Learned counsel for the first respondent contended that the injured herein is only a cleaner and therefore, the cleaner is covered under the policy and hence, the Insurance Company is liable to pay the compensation.
6.1. Even though it is contended that the injured is the cleaner, the evidence produced, on the side of the claimant, through the First Information Report, goes to show that somebody else is the cleaner. The complaint has been preferred by the cleaner (alleged) wherein the cleaner has stated that the claimant herein traveled in the vehicle only as a passenger. If at all, the case of the claimant that he alone was the cleaner is true, he ought to have examined the person, who claimed himself to be the cleaner, to show that the complainant is not the cleaner and the injured alone is the cleaner. When the claimant himself is relying upon the First Information Report, which states that one Manivannan/complainant is the cleaner and that the claimant/Srinivasan is the passenger, then the claimant is estopped from making the opposite claim, i.e., contradicting his own case in the claim petition. It is for the claimant to have explained the details, as furnished in the first information report, as to whether the averments stated in the first information report is true or the claim made by him, stating that he is the cleaner, is true. Unless such steps are taken, it is impossible to accept the claim that the claimant is the cleaner and he traveled in the vehicle in the capacity as cleaner.
6.2. Therefore, as contended by the learned counsel for the Insurance Company, the injured must be an unauthorised passenger in the goods carrier vehicle, of whom the Insurance Company is not liable to pay any compensation. The Policy of the Insurance Company do not cover anybody excepting the driver and the cleaner. Therefore, the order of the Tribunal, making the Insurance Company liable, is liable to be set-aside.
In the result, this Civil Miscellaneous Appeal is allowed. The order of the Tribunal, directing the Insurance Company to pay the compensation with liberty to recover it from the owner stands set-aside. The quantum of compensation, as awarded by the Tribunal, at Rs. 1,40,500/- is payable by the owner of the vehicle, along with interest at 9.5%. Learned counsel for the claimant represented that already the entire award amount has been deposited by the Insurance Company and the claimant has been permitted to withdraw 50% of the award amount. Having regard to the fact that the claimant is entitled to recover the compensation from the owner of the vehicle, 50% of which has been paid by the Insurance Company, the Insurance Company is at liberty to recover that 50% of the amount from the owner herself. No costs.