The insurer is liable for compensation when the identified tort-feasor is negligent, and claimants cannot choose to pursue unidentified tort-feasors.

JUDGMENT :

R.SAKTHIVEL, J.

Feeling aggrieved by the Award dated September 24, 2019 passed by the 'Motor Accident Claims Tribunal (Additional District Judge), Hosur' ['Tribunal' for short] in M.C.O.P.No.55 of 2018, the second respondent therein - Insurance Company has preferred this Civil Miscellaneous Appeal praying to set aside the Award.

2. Hereinafter, for the sake of convenience, the parties will be denoted as per their array before the Tribunal.

PETITIONERS' CASE IN BRIEF:

3. The first petitioner is the wife of the deceased – Boopathi while second and third petitioners are their children. Fourth and fifth petitioners are the parents of the deceased - Boopathi. On November 17, 2014 at about 19.15 hours, the deceased - Boopathi was travelling in a motorcycle bearing Registration No.KA.04.EW.9547 as the pillion. The first respondent, namely Magesh, son of Munisamy, was riding the motorcycle.

3.1. When the motorcycle was proceeding near Dharga Muthumariyamman Koil on Bangalore to Hosur NH 7 Road, the first respondent rode the Motorcycle in a rash, reckless and negligent manner, and swerved right to overtake a lorry and abruptly slowed down. Consequently, a lorry coming behind dashed on the motorcycle’s back side and fled the scene. Due to the impact, the deceased sustained fatal injuries to his head and other parts of his body and passed away on the spot.

3.2. The Hosur Traffic Investigation Wing [TIW] Police registered a case stating negligence of the lorry in Crime No.337 of 2014 under Sections 279, 337 and 304(A) of the Indian Penal Code, 1860. At the time of accident, the deceased was 33 years old. He was running a company by name ‘New Star Scientific Company’ at Hosur and earning a sum of not less than Rs.50,000/- per month. Hence, the petitioners filed an application before the Tribunal seeking compensation of Rs.75,00,000/- (Rupees Seventy Five Lakhs only) against the respondents on December 19, 2017 and the same was taken on file on February 22, 2018.

SECOND RESPONDENT’S CASE IN BRIEF:

4. The second respondent filed Counter, whereby it denied the averments made in the petition and contended that the petitioners are put to strict proof of the same. The second respondent further contended thereby that the accident happened due to the negligence of driver of an unidentified lorry. There is no fault on the part of the first respondent. Further, the first respondent has not co-operated with the second respondent by producing the necessary documents and deposing before the Tribunal, thereby violating the policy terms. Hence, the second respondent– Insurance Company is not liable to pay any compensation to the petitioners. Accordingly, it prayed to dismiss the Original Petition.

TRIBUNAL:

5. Before the Tribunal, on the side of the petitioners, the first petitioner – Priya was examined as P.W.1, one Govindaraj was examined as P.W.2 and Ex-P.1 to Ex-P.22 were marked. On the side of the respondents, one B.Sumathi was examined as R.W.1 and the Motor Vehicle Inspection Report [M.V.I. Report] of the motorcycle was marked as Ex-R.1.

6.  Upon hearing both sides and considering the oral and documentary evidence, the Tribunal, relying on the evidence of P.W.1 and Ex-P.1–First Information Report (FIR), concluded that the accident occurred due to the rash and negligent act of the rider of the motorcycle. Further held that at the time of accident, the first respondent’s motorcycle was insured with the second respondent and therefore, the second respondent is liable to pay compensation to the petitioners. As regards quantum of compensation, the Tribunal held that the petitioner was running a company by name ‘New Star Scientific Company’ at Hosur and was earning not less than Rs.50,000/