The defense of negligence is not permissible under Section 163(A) of the Motor Vehicles Act, and the entitlement to compensation in hit and run cases can be invoked under this section.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the order of the Motor Accident Claims Tribunal Cum Chief Judicial Magistrate, Srivilliputhur made in MCOP.No.19 of 2012 dated 26.04.2014 and allow the appeal.)

1. The appeal has been filed by the Insurance Company challenging an award passed by the Motor Accident Claims Tribunal primarily on the ground of liability.

2. When the deceased Selvaraj was driving a two wheeler, an unknown vehicle coming from the opposite direction which was driven in a rash and negligent manner, had hit against the two wheeler and it had not stopped but proceeded. The said Selvaraj suffered head injury and he passed away on 02.03.2012.

3. According to the claimants, the said Selvaraj was working as a salesman with the first respondent who is the owner of the vehicle. A sum of Rs.1,50,000/- has been spent toward medical expenses and the claimant made a claim of Rs.13,07,880/-.

4. The learned counsel for the second respondent/Insurance Company had filed a counter affidavit contending that the application under Section 163-A of Motor Vehicles Act is unsustainable when there is negligence on the part of the deceased Selvaraj. The Insurance Company had further contended that the said deceased Selvaraj did not have any driving license at the material point of time. They have further contended that the said Selvaraj was not an employee or workman under the first respondent. They have also disputed the quantum of compensation that was prayed for.

5. The Tribunal after considering the oral and documentary evidence, arrived at a finding that since the claim petition has been filed under Section 163 (A) of the Motor Vehicles Act, the issue of negligence on the part of the deceased need not be gone into. Thereafter, the Tribunal had proceeded to hold the the second respondent Insurance Company is liable to pay the compensation. The Tribunal has arrived at a finding that the claimants are entitled to a compensation of Rs.6,12,236/- after calculating the notional income of the deceased as Rs.40,000/- per month. This award is under challenge before this Court.

6. According to the learned counsel appearing for the appellant, the Insurance Company has taken a specific plea that the driver of the motor bike namely the deceased was responsible for the said accident due to his rash and negligent driving. Being a tortfeasor, he is not entitled to file an application under Section 163(A) of the Motor Vehicles Act. That apart, according to the claimants, an unknown vehicle had caused accident. Therefore, it should only be considered as a hit and run case and no compensation can be claimed from the appellant/Insurance Company.

7. The learned counsel had relied upon a judgement of the Hon''ble Supreme Court reported in 2020 (1) TN MAC 1 (SC) (Ramkhiladi and another Vs. United India Insurance Co.Ltd.,) to contend that the driver of the vehicle had borrowed vehicle from a third party and hence, he will be entering into the shoes of the owner. The owner of the vehicle will not be entitled to receive compensation under Section 163(A) of the Motor Vehicles Act.

8. Per contra, the learned counsel appearing for the respondents had relied upon a judgement of this Court reported in 2019 0 ACJ 1705 ( IFFCO- TOKIO General Insurance Company Ltd., Vs. S.Ilangovan & Others) and the judgement of the Hon''ble Supreme Court reported in 2013 8 MLJ 136 (United India Insurance Company Ltd., Vs. Sunil Kumar & another) and the judgement of this Court in C.M.A.No.3049 of 2018 dated 28.01.2019 ( The Divisional Manager, Oriental Insurance Company Ltd., Vs. G.Annadurai and another) to impress upon the Court that even in a case of hit and run, this Court can invoke Section 163 (A) of Motor Vehicles Act. The question of invoking the negligence on the part of the driver would not arise in cases of applications filed under Section 163(A) of the Motor Vehicles Act. Hence, he prayed for sustaining the or