J U D G M E N T

This Civil Miscellaneous Appeal has been filed against the dismissal order dated 07.03.2019 made in M.C.O.P.No.107 of 2014, on the file of the Motor Accident Claims Tribunal, Sub Court, Tiruchengode.

2. The appellant filed M.C.O.P.No.107 of 2014 on the file of the Motor Accident Claims Tribunal, Sub Court, Tiruchengode, claiming a sum of Rs. 15,00,000/- (Rupees Fifiteen Lakhs) as compensation for the injuries sustained by him in the accident that took place on 16.09.2013.

3. According to the appellant, on the date of accident i.e., on

16.09.2013, at about 10.45 am., while the appellant was driving his TN-34-H- 1717 Santro car on Namakkal – Tiruchengode Road, near Palakkad, the vehicle lost its control and dashed against a tamarind tree on the left side corner of the road. A case in Crime No.132/2013 under Sections 279, 337, 338 IPC has been registered against the owner of the vehicle/1st respondent. In the accident, the appellant sustained grievous injuries all over the body. Therefore, the appellant filed the above said claim petition claiming compensation against the respondents.

4. The 1st respondent owner of the Santro Car bearing Reg.No.TN-34-

H-1717 remained exparte before the Tribunal.

5.The 2nd respondent-Insurance company, filed counter statement denying all the averments made in the claim petition and stated that FIR was filed by one Revathi, Wife of appellant against him in Crime No.132/2013 in Elachipalayam Police Station, Namakkal District and the charge sheet has also been filed against the appellant. Being Tortfeasor, the appellant cannot claim any compensation from the 2nd respondent/Insurance company and therefore, the claim petition is liable to be dismissed against the 2nd respondent.

6. Before the Tribunal, the appellant examined himself as P.W.1 and Dr.Ramesh and another Dr.Kesavamoorthy were examined as P.Ws.2 and 3 and marked ten documents as Exs.P.1 to P.10. The 2nd respondent/Insurance company examined two witnesses as R.W.1 and R.W.2 and marked two documents as Exs.R.1 and Ex.R.2.

7. The Tribunal, considering the pleadings, oral and documentary evidence, held that accident occurred only due to negligence on the part of the appellant and dismissed the claim petition holding that the claim petition under Section 166 of the Motor Vehicles Act is maintenable only against the person who was negligent and caused the accident and appellant being a tortfeasor is not entitled to get compensation under Section 166 of the Motor Vehicles Act and also under Section 163-A of the Motor Vehicles Act, as he claimed that he is earning a sum of Rs.30,000/- per month.

8. Against the order of dismissal dated 07.03.2019 made in M.C.O.P.No.107 of 2014, the appellant has come out with the present appeal for granting compensation.

9. The learned counsel appearing for the appellant contended that the Tribunal having held that accident has occurred due to rash and negligent act of the driver of the car, erred in dismissing the claim petition, is contrary to the judgments of the Hon'ble Apex Court and this Court. The learned counsel appearing for the appellant further contended that appellant filed claim petition both under Sections 166 and 163-A of the Motor Vehicles Act and the Tribunal erroneously dismissed the claim petition without considering the fact that when the claim petition is filed under Section 163-A of the Motor Vehicles Act, the claimant need not prove negligence. In the accident, the appellant suffered grievous injuries, took treatment as in-patient in the hospital for seven days and spent Rs.78,102/- for medical expenses. The appellant was doing agricultural work and is owning Rig unit and was earning Rs.30,000/- per month before the accident. Due to the injuries he lost his entire earning capacity. The Tribunal ought to have awarded compensation under Section 163-A of the Motor Vehicles Act as per the judgments of the Division Bench of this Court reported in 2019(1)TNMAC 72 (DB) (Oriental Insurance Compa