JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act seeking to set aside the decree and judgment passed in M.A.C.T.O.P.No.95 of 2016, dated 23.11.2018, on the file of the Motor Accidents Claims Tribunal, 2nd Additional District Court, Salem.)

(The case has been heard through video conference)

1. This appeal has been filed by the appellant Insurance Company questioning its liability to pay compensation under the impugned Award, dated 23.11.2018, passed by the Motor Accidents Claims Tribunal, 2nd Additional District Court, Salem on the following grounds:

(a) According to the appellant insurance company, the bus insured with them, bearing Registration No.TN-30-AJ-4466, was never involved in the accident which resulted in the death of M.Ganesan on 23.09.2015 and therefore, the Tribunal has erroneously directed the appellant to pay the compensation to the dependents of the deceased viz., R1 to R5 herein.

(b) The FIR registered under Crime No.799 of 2015, against the driver of the insured bus was also closed as mistake of fact.

(c) Mr.Anbuselvan, the alleged informant to Mr.Karuppannan, the brother of the deceased, about the accident was also not examined as a witness before the Tribunal.

(d) The Tribunal failed to consider the evidence of R.W.2, who is the owner-cum-driver of the lorry bearing Registration No.TN-25-AY-0999, which was proceeding in front of the bus bearing Registration No.TN-30-AJ-4466 insured with the appellant, who had deposed that he had witnessed one person lying unconscious on the road along with a motorcycle and the passengers from the bus insured with the appellant, which came from behind overtook and stopped the lorry bearing Registration No.TN-25-AY-0999 and the passengers after getting down from the bus accused the lorry driver and handed him over to the nearby check post.

2. Heard Ms.N.B.Sureka, learned counsel appearing for the appellant and Mr.J.Ramakrishnan, learned counsel appearing for the respondents 1 to 5/claimants.

3. The learned counsel appearing for the appellant, drew the attention of this Court to the counter statement filed by the appellant insurance company before the Tribunal and would submit that a categorical stand has been taken by the appellant, as seen from their pleadings, that the bus insured with the appellant was never involved in the accident, which resulted in the death of M.Ganesan on 23.09.2015.

4. The learned counsel then drew the attention of this Court to the impugned Award dated 23.11.2018 and would submit that even on preponderance of probability, the driver of the insured bus cannot be held responsible for the death of M.Ganesan in the accident. She would further submit that the FIR (Ex.P1) was registered at the behest of the brother of the deceased by name Mr.Karuppannan, who was not present at the scene of the accident, which resulted in the death of his brother M.Ganesan. She would also submit that even as per the FIR, it is the statement of Mr.Karuppannan that he was informed by Mr.Anbuselvan, who was the alleged witness to the accident that the bus insured with the appellant insurance company was responsible for the cause of the accident. The learned counsel would point out that the said Mr.Anbuselvan was not examined as a witness by the respondents 1 to 5/claimants before the Tribunal.

5. The learned counsel then drew the attention of this Court to the deposition of the driver of the lorry bearing Registration No.TN-25-AY-0999 (R.W.2) and would submit that since the said lorry was proceeding in the front and the lorry driver had seen the accident victim lying on the road along with the two wheeler, the possibility of the bus insured with the appellant, which is coming from behind involving itself in the accident will not arise. According to her, the Tribunal has failed to appreciate this clinching evidence to show that the driver of the bus insured with the appellant was not involved in the accident which resulted in the death of