In the absence of proof of tortious act by the driver of the auto, the owner/insured cannot be held vicariously liable.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, praying to set aside the Decree and Judgment dated 19th September, 2018, passed in M.C.O.P. No.389 of 2015 by the Hon''ble Motor Accidents Claims Tribunal, (Special Sub. Court), at Tirupattur.)

1. The appeal is filed by the Insurance Company challenging both negligence as well as quantum of compensation awarded by the Claims Tribunal.

2. The parties are herein referred to, as they are ranked before the Tribunal.

3. The brief facts necessary for the purpose of deciding the case are as follows:

On 17.11.2015, while the claimant was traveling in a Auto rickshaw, a JCB vehicle driven by its driver in a rash and negligent manner, came from the Western side of the main road and dashed against the Auto. Due to the impact, the claimant sustained grievous injuries.

4. According to the claimant, the accident occurred due to rash and negligent driving of the driver of both the vehicles. According to the claimant, being a Coconut peeler and Cattle seller, he was earning Rs.15,000/- per month, out of the aforesaid business and was maintaining his family. The claimant therefore filed the claim petition claiming a sum of Rs.5 lakhs as compensation for the injuries sustained by him in the accident.

5. The first respondent, owner of the JCB vehicle remained ex-parte and the second respondent, owner of the Auto also remained ex-parte before the Tribunal. The third respondent, insurer of the Autorickshaw contested the claim petition by filing a detailed counter affidavit disputing the negligence, liability and quantum of compensation.

6. According to the Insurance company, the accident had occurred only due to the negligence on the part of the driver of the JCB vehicle and therefore the Insurance company was not liable to compensate the claimant.

7. Before the Claims Tribunal, the claimant examined himself as P.W.1 and marked Ex.P.1 to Ex.P.11. The disability certificate was marked as Ex.P.12. by the Court Suo Motu. On the side of the third respondent, R.W.1 and R.W.2 were examined and R.1 to R.6 were marked.

8. The Claims Tribunal, on an assessment of entire evidence on record, rendered the finding of negligence against the driver of the JCB vehicle. The Claims Tribunal, inspite of such finding on negligence, mulcted the liability on the appellant Insurance company, on the ground that the insurance policy covered passengers in the Auto. On the quantum of compensation, the Claims Tribunal adopted multiplier method and awarded compensation of Rs.12,79,600/- together with 7.5% interest from the date of claim petition till the date of deposit.

9. Aggrieved by the impugned award of the Claims Tribunal, the Insurance company has filed the above appeal.

10. The learned counsel for the appellant/Insurance Company submitted that the Claims Tribunal grossly erred in mulcting the liability on the Insurance company, inspite of its finding on negligence. The learned counsel submitted that, in the absence of proof of negligence of the driver of the autorickshaw, the liability could not be mulcted on the appellant Insurance company which is the insurer of the Auto in which the claimant was travelling as a passenger. On the issue of quantum, the learned counsel submitted that the adoption of multiplier method by the claims tribunal was not sustainable, as the injuries sustained by the claimant were not such as to attract the adoption of the multiplier method.

11. The second respondent did not contest the claim petition and the notice sent in this appeal to the second respondent was received by the wife of the second respondent and in the appeal also, the second respondent did not appear either in person or through counsel

12. I have heard the learned counsel for the appellant/Insurance Company and have perused the materials placed on record.

13. It is seen that the claimant was travelling in a Autorickshaw as a passenger and at that time, a JCB vehicle belonging to the se