KASTHURI Vs. M. GOPU

JUDGEMENT

(1.) This Civil Miscellaneous Appeal has been preferred against the judgment and decree of the Motor Accidents Claims Tribunal (Principal District Judge), Thiruvallur dated 29.03.2011 made in M.C.O.P.No.240 of 2008 on the file of the said Tribunal.

(2.) The appellants herein, being the wife and daughters of one Subramani,who died in an accident that took place at about 14.00 hours on 21.04.2007 near Murukkampattu Village on the Tiruttani-Thirupathi High Road, involving the motorcycle belonging to the first respondent herein bearing Registration No.TN02-AA-5951, made a claim before the Motor Accident Claims Tribunal against the first respondent (owner) and the second respondent herein (insurer), claiming a sum of Rs.9,00,000/- as compensation. The said claim was made based on their contention that while the deceased was proceeding in his TVS Champ Moped bearing Registration No.TN20-B-6257, the motorcycle bearing Registration No.TN02-AA-5951 belonging to the first respondent came from behind at a high speed and hit the deceased due to the rash and negligent riding of the said motorcycle by its rider and that the said impact resulted in fatal injuries leading to the death of the said Subramani. It had been contended further that the deceased Subramani was aged about 50 years and was self-employed as a Mason earning Rs.6000-7000/- per month and that due to his death in the accident, his wife and daughters (appellants herein/claimants 1 to 3) suffered pecuniary loss as they suffered loss of monetary support from the income of the deceased, besides the first appellant losing consortium and the appellants 2 and 3 herein losing love and affection of the father. It was also contended that the offending vehicle, namely the motorcycle bearing Registration No.TN02-AA-5951 belonging to the first respondent herein, stood insured with the second respondent (insurer) and that hence the first and second respondents were jointly and severally liable to pay compensation to the appellants herein.

(3.) The first respondent herein did not contest the M.C.O.P and he remained ex parte. The second respondent / insurer alone contested the case raising all grounds of defence available to the insured, namely the first respondent, apart from the grounds available to the insurer under Section 149(2) of the Motor Vehicles Act, 1988, after getting permission under Section 170 of the Motor Vehicles Act. In the counter statement, besides making general denial of the narration of the accident contained in the M.C.O.P and the age, occupation and income of the deceased, the second respondent contended that the deceased, who was the rider of TVS Champ bearing Registration No.TN20-B-6257, was not having valid Driving Licence; that even the rider of the motorcycle belonging to the first respondent bearing Registration No.TN02-AA-5951 which stood insured with the second respondent did not possess a valid Driving Lincence as on the date of accident and that hence, the second respondent should be exonerated from its liability to satisfy the award that might be passed against the first respondent. It was also contended that the first respondent, who was the rider of the above said motorcycle, was under the influence of alcohol at the time of accident and that the same was also a valid ground for the second respondent/insurer to repudiate the contract of insurance. The further contention raised in the counter statement was that since the insurer of the moped bearing Registration No.TN20-B-6257 in which the deceased was proceeding was not made a party respondent, the M.C.O.P was bad for non-joinder of necessary party and that in view of the violation of the policy conditions regarding the insurance of the alleged offending vehicle, namely motorcycle bearing Registration No.TN02-AA-5951, the appellants could not claim any amount even under Section 140 of the Motor Vehicles Act, unless the appellants would prove that the accident happened solely due to the negligence of the driver of the first respondent. Based on the above said pleadings made in the counter statement, the second respondent had prayed for the dismissal of the M.C.O.P.