J U D G M E N T

(This case has been heard through Video Conferencing)

This appeal is filed by the Insurance Company, being aggrieved by the quantum of compensation as well as the liability fixed on it to pay the compensation.

2.Brief facts of the case is that, on 22.12.2009, at about 11.45 p.m., Subramaniam along with one Prakash on the pillion, while riding his motorcycle bearing Registration No.TN 33 U 4000 from south to north along the Tirupur to Anivashi Main Road, nearby MSM Banian Company, Avinashilingampalayam, he dashed behind the parked van bearing Reg.No.TN 09 AJ 6112 and sustained severe injuries. He was taken to the KMC Hospital, Kovai for treatment and the shifted to Government Hospital, Tiruppur, where he succumbed to the injuries.

3.Police complaint regarding the accident was given by the pillion rider. In the complaint, he attributed negligence on the deceased Subramaniam, who without noticing the parked van and ignoring the warning, dashed behind the van and sustained injury. The said complaint was closed as abated. However, claim petition was filed alleging that the van driver, without any signal and not adhering the traffic regulation, parked the van on the middle of the road and his negligence was the cause for the accident. A sum of Rs.15,00,000/- was claimed by the parents of the deceased for the loss of life and income of the deceased was about 24 years at the time of the accident and earning Rs.8,000/- as Banian Company Worker.

4.The Insurance Company filed counter stating that the claim petition filed after five years of the accident with fabricated documents. Knowing fully well that the deceased was a tort-feasor and no compensation can be claimed against the two wheeler's insurer, claim petition filed against the parked van owner and its insurer. Therefore, a false case has been narrated as if the accident occurred due to the negligence of the van driver which is contrary to the complaint lodged by the eye witness, the pillion rider of the motorcycle. In the First Information Report, the eye witness has clearly stated that the deceased drove the motorcycle in a rash and negligent manner and hit behind the parked van bearing Reg.No.TN 09 AJ 6112 which was stationed in the extreme left side of the road and the same is confirmed through the report of the Motor Vehicle Inspector and from the damages found in the parked van. If at all the claimants have any right to get compensation, they can claim only from the insurer of the two wheeler. The delay for filing the petition after lapse of 5 years is not explained. The driving licence of the deceased not produced. The insurance policy of the motorcycle in which the deceased travelling has not been produced. Therefore, the claim petition has to be dismissed.

5.Before the Tribunal, three witnesses were examined in support of the claimants. 9 exhibits were marked. On the side of the respondents, two witnesses were examined. 3 exhibits were marked.

6.The Tribunal, relying upon the evidence of PW-2 Palanisamy, who claims to be the witness to the accident, held that the accident took place due to the negligence of the van driver. The Tribunal disbelieved the evidence of the van driver RW-1 and awarded a sum of Rs.12,85,000/- as compensation.

7.In the appeal, the Insurance Company has contended that the finding of the Tribunal attributing the negligence on the part of the van driver, who parked the vehicle on the road margin is contrary to the First Information Report and the evidence of RW-2. The Tribunal erred in relying upon the evidence of PW-2 whose presence not been found in any of the contemporaneous document. Further, the claim petition filed after five years of the accident is intentional and should be discouraged. Without impleading the Insurance company of the two wheeler and without producing the driving licence of the victim, the Tribunal ought not to have awarded Rs.2,85,000/- rounded off Rs.2,50,000/- as compensation under Section 166 of the Motor Vehicl