NATIONAL INSURANCE CO. LTD Vs. GANESAN

JUDGEMENT

(1.) THESE appeals have been preferred by the National Insurance Company Limited, against the common award of the Motor Accidents Claims Tribunal (Principal Sub Court), Tirunelveli, in M.A.C.O.P. Nos. 191 of l982 and 26 and 33 of l983.0.N.S.Farook and Sons, Madurai, owned a Matador van bearing registration No. T.N.A. 2829 and that was insured with the appellant. On 27.7.1982, while that van was returning from Kanyakumari to Madurai, at about 5 p.m. near Panangulam, an accident took place involving the vehicle T.N.A. 2829 and another lorry bearing registration No. TMP 5857. At the time when the accident took place, certain passengers were travelling by the van and among them, were Ganesan, Baskaran and Balasubramaniam. Ganesan, the 1st respondent in C.N.A. No. 864/85 sustained some injuries. Baskaran and Bala-subramaniam lost their lives. In respect of the injuries sustained by the 1st respondent in C.M.A. No. 864 of 1985 in that accident, he filed MACOP No. 191 of 1982 on the ground that the matador van, at the time of the accident, was driven rashly and negligently by its driver, the 3rd respondent in C.M.A. No. 864 of 1985 and that had caused the accident and that compensation in a sum of Rs. 1,00,000/- should be awarded to him. The mother of deceased Baskaran, the 1st respondent in CMA No. 750 of 1986 filed MACOP No. 26 of 1983 claiming compensation to a sum of Rs. 60,000/- in respect of the death of her son, Baskaran, on the ground that accident involving the vehicle TNA 2829, in which Baskaran lost his life took place only on account of the rash and negligent driving of the vehicle by its driver. Respondents 1 to 5 in CMA No. 1192 of 1986 who are the parents, brother and sisters of deceased Balasubramaniam, filed MACOP No. 33 of 1983 praying for the award of compensation in a sum of Rs. 1,00,000/- to them in respect of the death of Balasubramaniam, which, according to them, took place on account of the rash and negligent driving of the van TNA 2829 by its driver.

(2.) TO these claim petitions so filed, the owner of the van, its driver, the insurer of the van, viz., the appellant, the owner of the lorry TMP 5857 and its insurer were made parties. According to the case of the 1st respondent in CMA No. 864 of 1985, the owner of the vehicle TNA 2829 was approached by him and two others for the purpose of taking the van TNA 2829 on hire to go to Courtallam, Kanyakumari and other places and that it was agreed to on payment of Rs. 1.25 ps. per k.m. besides the cost of diesel to be met by the 1st respondent in CMA No. 864 of 1985 and Ors. and that after visiting Courtallam and Kanyakumari, while returning from Kanyakumari to Madurai, the vehicle TNA 2829 was driven rashly and negligently by its driver and hit against the stationary lorry TMP 5857 in the rear and that the accident, he sustained injuries, which eventually led to the amputation of this left arm and therefore, he should be paid compensation, as claimed by him. Similar claims were made by the 1st respondent in CMA Nos. 750/86 and in respect of the death of Baskaran and Balasubramaniam, respondents 1 to 5 in CMA No. 1192 of 1986 though the amount of compensation claimed was different.

(3.) LEARNED Counsel for the appellant contended that as per the terms of the policy of insurance, Ext. B. 2, it did not cover the use of the vehicle for hire or reward and in this case, the presence of P.W. 1, deceased Baskaran and deceased Balasubramaniam in the vehicle, who had nothing whatever to do with the owner of the vehicle TNA 2829 at the time of the accident, clearly established that the vehicle had been used for carriage of passengers for hire and that would amount to a violation of one of the conditions of the policy, justifying the exoneration of the appellant-Insurance Company from liability. On the other hand, learned Counsel for the respondents pointed out that it had not been established on the evidence that one of the conditions of the policy had been violated and the appellant- Insurance Company cannot, therefore, be heard to say that it was not liable for the payment of compensation.