JUDGMENT

(Prayer: Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, as against the Decree and Judgment dated 15th March, 2017, passed in MCOP No.580 of 2011, by the Motor Accidents Claims Tribunal (Principal District Judge), at Cuddalore.)

1. The 2nd respondent/Insurance Company is the appellant before this Court, challenging the award passed in M.C.O.P. No.580 of 2011 on the file of the Motor Accident Claims Tribunal (Principal District Court) Cuddalore. The facts are briefly reproduced herein below necessary for appreciating the contentions raised by the appellant herein.

2. The respondents 1 to 6 herein who are the claimants before the Tribunal below are the legal representatives of late Bhoovaramoorthy's They are the wife, children and mother of the deceased. It is their case that the said Bhoovaramoorthy was working as a driver in Saudi Arabia and earning a sum of Rs.25,000/- per month. On 25.11.2010 when the deceased had come to India at about 15.00 hours, he was proceeding on the Vridhachalam to Chidambaram Main Road on a TVS Victor Motor Cycle bearing Registration No.TN-32-V-2778. When the vehicle had reached near Amdedkar Nagar, Bus Stop, a Skoda Car bearing Registration No.KA-03- ME-9286, belonging to the 7th respondent herein and insured with the appellant herein driven in a rash and negligent manner at great speed rammed the petitioner's motor cycle from behind and the driver of the motor cycle died on the spot.

3. The respondents 1 to 6 had originally filed their claim only against the owner and insurer of the Skoda car. In the original claim petition they had stated that the accident was only on account of the negligence on the part of the driver of the 7th respondent’s car herein. The 7th respondent had entered appearance through counsel and had not filed a counter he was therefore called absent and set ex parte. The appellant herein had filed a counter denying the very accident and contended that the 7th respondent’s vehicle was not involved in the said accident. However, the appellant had stated that they had not received any claim form the 7th respondent and was therefore, constrained to file the counter on the available material. Despite taking such stand in paragraph 9 of the counter, the appellant had made the following statement

 “On 25.11.2010 at about 15 hrs, The first Respondent car Regn. No.KA-03-ME-9286 from east to west at a moderate speed, keeping extreme left of Virudhachalam to Chidambaram Main road, one person drove a TVS victor Regn No.TN- 32-V-2778 motor cycle and proceeds on the same direction from front side of the Car and he descent the TVS Victor motor cycle on his let side of the tar road for passes the first respondent car, after the first respondent car passes, he again to ascent the TVS Victor motor cycle on upper side of the tar road and he stumbled and slipped down with TVS Victor motor cycle due to the right side handle of the TVS Victor hit against the back corner of the left side of body of the first respondent Car and invited the accident and sustained fatal. This accident had happened due to the careless, rash and negligent act of the driver of the TVS Victor alone and not due to any rash and negligent act of the driver of the first respondent.”

4. The trial initially commenced on the basis of the above pleadings and after the evidence of RW.1, respondents 1 to 6 herein had filed an application to implead the owner of the motor cycle bearing Registration No.TN-31-BY-8447, and its insurer as respondents 3 and 4. The said petition was allowed and respondents 8 and 9 were impleaded as respondents 3 and 4 in the claim petition. Thereafter respondents 1 to 6 had filed an amendment petition to give effect to the order in the implead petition. The respondents 1 to 6 had deleted the statement that the accident had occurred only on account of the negligence of the driver of the Skoda car and substituted the same with the following sentence “The above accident also involved