JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988, to set aside the Judgment and decree dated 09.12.2020 passed in M.A.C.O.P.No.756 of 2017 on the file of the V Additional District Judge (Motor Accident Claims Tribunal), Madurai by allowing this appeal.)

1. This Civil Miscellaneous Appeal has been filed to set aside the order, dated 09.12.2020 in M.A.C.O.P.No.756 of 2017, passed by the learned V Additional District Judge (Motor Accident Claims Tribunal), Madurai.

2. It is a case of fatal accident, on 25.03.2017 at about 17.10 hours, when the deceased Sethupathi was travelling as rider in a two wheeler bearing registration No.TN-59-BV-4001 on Melur to Thiruppathur Main road, near Uttanpatti junction from east to west direction, unfortunately hit against the crossed dog on the above said road and fell down. Due to the said accident, the deceased sustained fatal head injuries and died on the same day.

3. The claimant has filed a petition in M.C.O.P.No.756 of 2017 on the file of the Motor Accident Claims Tribunal/V Additional District Judge, Madurai, seeking compensation.

4. Before the Tribunal, on the side of the claimant, two witnesses were examined as P.W.1 & P.W.2 and marked eight documents as Exs.P.1 to P.8. On the side of the appellant herein/respondent, three witnesses were examined as R.W.1 to R.W.3 and four documents were marked as Ex.R.1 to Ex.R.4.

5. The Tribunal, after considering the pleadings, oral and documentary evidences and the arguments of the counsel for the claimant and the respondent and also on appreciating the evidences on record, held that the accident occurred only, due to the rash and negligent driving of the two wheeler of the deceased and directed the appellant herein to pay a sum of Rs.6,89,000/-as compensation.

6. Against which, the appellant/respondent has filed this present appeal to set aside the award of compensation passed by the Tribunal.

7. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and perused the materials available on record.

8. The learned counsel appearing for the appellant contended that the Tribunal has failed to note that the deceased was not a third party to the insurance policy issued by this appellant. He further contended that the Tribunal has failed to note that after the death of the said Sethupathi the claimant being the legal heir of the deceased, has become the owner/insured of the said vehicle bearing registration No.TN-59-BV-4001 and therefore she cannot act as a claimant and the person liable to pay compensation. The Tribunal has failed to note that for the death of the insured cum owner of the vehicle bearing registration No.TN-59-BV-4001, claim petition under Section 163A or 166 of the Motor Vehicle Act, is not maintainable. He further contented that the Tribunal without following the settled principles of law laid down by the Apex Court and High Court, has awarded higher compensation to the petitioner.

9. If a claim petition filed under Section 163-A of Motor Vehicles Act, negligent is absolutely irrelevant.

10. The relevant portion of the Judgment reported in 2007 (1) TAC 217 : 2007 ACJ 698 (Ker.) in the case of United India Insurance Company Limited V.Rukiya, is extracted hereunder:

“Claim made by driver or his legal representatives cannot be dismissed on the ground that accident occurred due to his own negligence. Under Section 163-A, owner of the Motor Vehicle or his insurer cannot plead the absence of negligence on their part and no evidence can be adduced on negligence aspect. Absolute liability is fixed under Section 163-A. Whether there is negligence of the owner or driver is proved or not. It is an absolute statutory liability imposed on an authorised insurer of the vehicle or (if there be no authorized insurer) on the owner of the vehicle. Negligence is irrelevant in a claim under Section 163-A.”

11. It is admitted by the appellant/insurance company that the acc