Neither owner of the vehicle nor the insurer held liable by the Court.

Abdul Hadi, J.:

This appeal by the 2nd respondent-Insurance Company is against dated 13.9.1984 in M.C.O.P.No.8 of 1984 on the file of Motor Accident Claims Pudhukottai awarding a compensation of Rs.2 lakhs to the respondents 1 to 4 who claimants in the above said M.C.O.P. The said compensation was awarded on account death of one Muthuraman when he himself drove the car MDT.3004 on 5.9.1982 and with an accident which resulted in his death. The 5th respondent herein is the owner said car and the claimants are Muthuraman’s wife, two minor children and his mother.

2. The case of the claimants briefly is as follows: The said Muthuraman was driving the car taking along with him in the said car his relatives and was proceeding in a normal A cyclist, coming in the opposite direction suddenly swerved to the right in front of the In order to avert dashing against him and killing him, the said Muthuraman suddenly swerved his vehicle to the left, thereby brought it down to the mud portion of the road as the road was slippery the vehicle skidded and went uncontrollable and capsized. Due this, the deceased sustained grievous injuries in the lower part of the abdomen and after villagers removed him and other occupants from the car by bringing it to the position, he was admitted in Ponnamaravathi Hospital to which he was carried in a town Immediately on admission he succumbed to the injuries. The accident is only due slippery condition of the road and the deceased was not in any way responsible for same. The first respondent is the owner of the car, the deceased was driver in the car third party, and the insurer as well as the owner are liable to answer the claim.

3. In the light of the discussion, necessary in the present case, there is no necessity setting out the further pleadings. The first respondent in the M.C.O.P. (5th respondent herein) remained ex parte. The second respondent-Insurance Company (the appellant herein) filed a counter inter alia pleading that there is no actionable claim against Insurance Company, that the accident was caused due to the rash and negligent driving the part of the deceased, that hence the claimants are not entitled to claim compensation, that under Sec.95 of the Motor Vehicles Act (hereinafter referred to as ‘Act’) a policy is required to indemnify the owner only in respect of a liability incurred him, traceable under Law of Torts, and in respect of the death or bodily injury, or damages to the property of a third party, arising out of the use of a vehicle in a public place and the deceased was not a paid driver.

4. The tribunal below has accepted the case of the claimants and has held that the Muthuraman did not drive the car negligently and that there is no contra- evidence on side of the Insurance Company which has simply taken the question of maintainability petition. Then, on the question whether the petitioners before it are entitled to compensation, it has observed that the petitioners before it have not claimed compensation on the ground that the said Muthuraman was a paid driver under the respondent herein, that the claim was not made by the third party against the owner vehicle and the Insurance Company, that, since the car was entrusted to the deceased Muthuraman, he was in possession of the vehicle in the capacity of the owner the vehicle and that hence the Insurance Company is liable to pay the compensation to claimants.

5. Even before considering the submissions of the learned counsel for the appellant, we to see whether the above said claim petition is maintainable at all, even on the very the claim petition itself. It is elementary that for maintaining any action for compensation, the wrong or tort committed by the 5th respondent must be specifically pleaded. But, we find from the claim petition, (the relevant portion of which has been extracted) that it does not show any wrong on the part of the owner of the car, the respondent herein. There is absolutely no allegation in the