A tortfeasor cannot claim compensation under Section 163A of the Motor Vehicles Act against the owner/insurer of the vehicle they were operating.

JUDGMENT :

L. VICTORIA GOWRI, J.

1. This Civil Miscellaneous Appeal has been filed by the appellant/insurance company, challenging the award passed by the learned Motor Accident Claims Tribunal (Sub Judge), at Palani in M.C.O.P.No.333 of 2008 dated 26.03.2018.

2. For the sake of convenience, the parties are arrayed herein as per the ranking in M.C.O.P.No.333 of 2008.

3. The factual matrix of the present case, briefly stated, are as under:-

The petitioner is the injured/claimant. The first respondent was the owner of the two wheeler involved and the second respondent is the insurance company with which the vehicle belonged to the first respondent was insured. On 04.04.2008, the claimant was riding a motorcycle bearing registration No.TN-40-B-2705, along Palani – Dindigul road and while riding near V.V.R. Marriage Hall in the left side, due to flash light of the vehicle which came in the opposite direction, without noticing the pit which was dug for the purpose of building the bridge therein, the claimant had fell down along with two wheeler, as the result of which, he had sustained head injury and grievous injuries all over his body. Following which, he was admitted in Palani Government Hospital for treatment and further he was referred to Kovai Medical Centre, Coimbatore, as in patient for higher level treatment. In the course of treatment, he even suffered coma and he has not completely recovered and regained his full health. He was employed as Technical Assistant in the office of Assistant Divisional Engineer, Public Works Department and was earning Rs.11,000/- per month as salary. He suffered permanent disability and he has laid this claim petition, seeking compensation of Rs.2,00,000/- before the learned Tribunal.

4. The Tribunal had examined the 1^st respondent/claimant as P.W.1 and marked 8 documents Ex.P1 to Ex.P8 through him. One witness was examined and one document was marked on the side of the appellant/insurance company. On the basis of arguments made by either parties, the evidence deposed and documents marked, the learned Tribunal proceeded to fix liability on the appellant/insurance company and was pleased to pass an award of Rs.1,93,338/- as compensation to the 1^st respondent. Challenging the same, this Civil Miscellaneous Appeal is filed.

5. The learned counsel appearing for the appellant/insurance company submitted that this is a case where the injured is the claimant, who in the course of riding a vehicle belonging to the first respondent happened to fell into a pit, due to his own inadvertence/negligence and having stepped into the shoes of the owner of the vehicle, he cannot lay the Accident Claim Petition being a tortfeasor, challenging the liability fixed on the second respondent with whom the vehicle involved is insured.

6. The learned counsel appearing for the first respondent submitted that the accident was not because of inadvertence/negligence of the claimant, but the same had happened because of flash light of the vehicle which came in the opposite direction, as the result of which, the injured/ claimant was not able to clearly find out the pits in the road and he had fell down and pressed for dismissal of the Appeal.

7. Heard the learned counsel for the appellant, the learned counsel for the first respondent and carefully perused the materials available on record.

8. Though the learned Tribunal had proceeded to decide that the claimant/ injured is entitled for compensation by making a observation that the accident had happened because of flash light of the vehicle, which came in the opposite direction, I am of the considered view that the details of the vehicle involved, which came in the opposite direction is not elaborated by any sustainable oral or documentary evidence.

9. FIR is marked as Ex.P1 and careful perusal of the same would reveal that the defacto complainant in the said FIR was the eye witness of the said accident, namely, A.Alagiyaannan, had given information and on the basis of which, FIR No.89