In a claim proceeding under Section 163A of the Motor Vehicles Act, 1988, the insurer cannot raise any defense of negligence on the victim.

JUDGMENT

(Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the judgment and decree of the Claims Tribunal in M.C.O.P.No.4422 of 2013 dated 24.06.2017 on the file of the Motor Accident Claims Tribunal, Special District Court (MCOP), Tiruchirappalli.)

1. This Civil Miscellaneous Appeal has been directed as against the judgment and award passed by the learned Motor Accident Claims Tribunal, Special District Judge, at Tiruchirappalli in M.C.O.P.No.4422 of 2013 dated 24.06.2017, by the appellant/second respondent/insurance company, challenging the award passed by the learned Tribunal.

2. For the sake of convenience, the parties are addressed herein as per the rank in M.C.O.P.No.4422 of 2013.

3. The factual matrix of the present case, briefly stated, are as under:- The first petitioner is the wife, the second petitioner is the minor son and the third and fourth petitioners are the parents of the deceased. On 22.03.2006 at about 05.00 p.m., the deceased Murugesh @ Murugesan employed under the first respondent on his instructions, took the two wheeler bearing registration No.TN-33-K-0678 belonging to the first respondent and went for money collection along Erode - Karur Byepass road from north south direction and when he came near Kollakattumedu P & C Pipe company, a dog suddenly crossed the road. As the result of which, the deceased lost balance and fell down. Immediately he was taken to Erode Government Hospital for first aid and thereafter, shifted to Government Headquarters Hospital, Trichy wherein he was admitted as inpatient from 22.03.2006 to 24.03.2006. However, he died on 24.03.2006. At the time of accident, the deceased Murugesh @ Murugesan was 30 years old. The petitioners filed claim petition in M.C.O.P.No.4422 of 2013 seeking compensation of Rs.10,00,000/-.

4. The first respondent is the owner of the vehicle. The second respondent is the insurance company for which the first respondent vehicle was insured. The second respondent has filed a counter refuting the allegation put forth in the claim petition. It was further contended that the deceased who was riding the motor cycle, had no valid driving licence to drive the motor cycle at the time of the accident and he dashed against the road side tamarind tree on his own volition and hence, it is not necessary to extend the insurance cover for the rider of two wheeler as per Section 147 of the Motor Vehicles Act.

5. The learned Tribunal framed two issues. Three witnesses were examined P.W.1 to P.W.3 and Ex.P1 to Ex.P3 were examined on the side of the petitioners. Two witnesses were examined as R.W.1 and R.W.2 and Ex.R1 on the side of the respondents and Ex.X1 were marked. The first respondent was set exparte before the learned Tribunal. On the basis of the evidence deposed by the witnesses and documents available on record and on the basis of the arguments submitted by the petitioners and the second respondent, the learned Tribunal came to a conclusion that the negligence of the deceased was not proved and the second respondent/insurance company was made liable. Hence, the learned Tribunal held that both the respondents 1 and 2 are liable to pay compensation. Since the avocation of the deceased was not proved, a notional monthly income of the deceased was fixed as Rs.4,000/-. After deducting 1/3 towards personal expenses, a notional income of Rs. 2,667/- was arrived at. Considering the age of the deceased to be 30 years, the multiplier 17' was adopted. The loss of dependency was arrived at Rs.5,44,068/- (2667x12x17). The quantum of award is decided by the learned Tribunal is as follows:-