Liability of the insurance company in a motor accident case is determined based on the coverage of the vehicle under the insurance policy at the time of the accident.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, praying to set aside the Judgment and decree dated 24.03.2007 made in MCOP No.584 of 2005 on the file of Motor Accident Claims Tribunal (First Additional Subordinate Court Erode) Erode District.)

1. Challenging the liability fixed on the appellant/Insurance Company vide Award dated 24.03.2007 made in MCOP No.584 of 2005 on the file of the Motor Accident Claims Tribunal (First Additional Subordinate Court Erode) Erode District, the present Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company.

2. The factual matrix of the case is as follows:

2.1. On 08.04.2001 at about 1.45 hrs, when the claimant was walking from the North to South direction in P.N.Road in front of Muniappan Kovil at the extreme left side, the 2nd respondent drove the Yamaha RX135 Motorcycle bearing Reg.No.TN39 B 1788 in a rash and negligent manner and dashed against the claimant. Due to the said impact, the claimant sustained grievous injuries and also sustained fractures in his head, right shoulder and neck. Immediately, he was taken to Government Hospital, Tiruppur for treatment. Thereafter, he was shifted to Palaniandi Mudaliyar Memorial Hospital, Salem for better treatment. Due to the above injuries sustained by the claimant, he filed a claim petition seeking for a compensation of Rs.2,00,000/- in MCOP No.584 of 2005 on the file of the Motor Accident Claims Tribunal (First Additional Subordinate Court Erode) Erode District.

2.2. In the claim petition, the Insurance Company had filed its counter statement, denying all the averments made by the claimant. It is averred by the learned counsel appearing on behalf of the Insurance Company that the accident took place only due to the negligence of the claimant and there was no insurance cover for the offending motorcycle on that date of accident and therefore, prayed for dismissal of the claim petition.

2.3. Before the Tribunal, the claimant examined himself as P.W.1 and on the side of the claimant, eleven (11) documents were marked as exhibits Exs.P1 to P11. On the side of the appellant/Insurance Company, no oral and documentary evidence was let in.

2.4. The Tribunal, upon examining Ex.A.3-Wound Certificate, has clearly mentioned that the claimant was under the influence of alcohol at the time of occurrence of accident and therefore, held that the claimant has also contributed to the accident. Further, the Tribunal, by referring to the earlier decision of this Court made in CMA.No.113 of 2006 dated 23.1.2006, wherein this Court has held that, when a person drives a vehicle under the influence of alcohol and met with an accident, then, he cannot be considered on par with other persons who had been a victim of accident. Following the above dictum laid down by this Court, the Tribunal, held that the claimant is entitled to the compensation, only in respect of the injuries sustained by him in the accident. Accordingly, the Tribunal awarded a total compensation for a sum of Rs.21,496/- [Rs.10,000/- for grievous injuries; Rs.5,000/- for pain and suffering; Rs.5000/- for Extra nourishment and Rs.1496/- for medical expenses], vide Award dated 24.03.2007 made in MCOP No.584 of 2005.

3. Aggrieved against such fixation of liability on the appellant/Insurance Company vide Award dated 24.03.2007 made in MCOP No.584 of 2005 on the file of the Motor Accident Claims Tribunal (First Additional Subordinate Court Erode) Erode District, the present civil miscellaneous appeal has been filed.

4. In the present case on hand, it is the contention of the learned counsel for the appellant-Insurance Company that the Tribunal erred in coming to the conclusion that the Insurance Company is liable to pay the compensation to the claimant, because the accident had occurred only due to the negligence on the part of the claimant. Further, the vehicle was not covered by a policy issued by the appellant on