J U D G M E N T

The second respondent Insurance Company before the Motor

Accidents Claims Tribunal is the appellant herein. This appeal has been filed against the judgment and decree dated 17.07.2017 passed by the Motor Accidents Claims Tribunal (In the Court of Subordinate

Judge), at Madurantakam, in M.C.O.P.No.36 of 2012.

2.The brief facts of the case is that on 23.12.2011, at about

4.30p.m., the deceased Charlie was travelling as a pillion rider in Hero Honda bearing Registration No.TN-18-C-2803 on the G.S.T.Road, near Mamandoor Vadapathy, Opposite to Lakshmi Water Service Station. At that time, the rider of the motorcycle drove the motorcycle in a rash and negligent manner and applied sudden brake, due to which, the motorcycle skidded and the deceased was taken to C.M.C.H. At Chengalpattu, where he was given first aid and thereafter he was taken to G.G.H., Chennai, however, he died on 24.12.2011.

3.Thereafter, the dependants of the deceased Charlie/

respondents 1 to 4 filed claim petition before the Motor Accidents

Claims Tribunal, claiming compensation of Rs.25 Lakhs. After adjudication, the Motor Accidents Claims Tribunal awarded a sum of Rs.5,85,514/- as compensation with interest at the rate of 9% p.a. from the date of petition till the date of payment and costs and directed the appellant Insurance Company to deposit the compensation. Aggrieved by the same, the appellant Insurance

Company has filed this appeal.

4.The learned counsel appearing for the appellant submitted that the appellant has filed this appeal on the ground of liability and the main allegation of the appellant is that the pillion rider became rider and rider became pillion rider inorder to avail the benefits of the

Insurance Policy.

5.The learned counsel appearing for the appellant further submitted that though the accident happened on 23.12.2011, P.W.1 who is the son of the deceased made complaint before the law enforcing agency on 24.12.2011, in which, he has specifically stated that one Johnson drove the vehicle, however, subsequently, the law enforcing agency filed charge sheet as against the deceased. The said fact was established before the Tribunal through R.W.2 – Police

Officer. R.W.2 in his deposition has clearly deposed that the deceased himself drove the vehicle. Thereby, the charge was abated due to the death of the deceased.

6.The learned counsel appearing for the appellant further submitted that the deceased not possessed valid licence and inorder to avail the benefits of the Insurance Policy, the pillion rider was changed as rider and rider was changed as pillion rider. Further P.W.4 is the brother in law of the deceased and P.W.2 alleged eye witness is also neighbour of the deceased and they deposed in favour of the deceased family. Further in the motor vehicle inspection report, the rider of the motorcycle is mentioned as Charlie and xerox copy of M.V.Report has been marked as Ex.R2. All the documents and evidence cumulatively prove that the deceased does not possess valid driving licence. He is a tort feasor skidded and fell down and lost his life. Hence, fastening liability as against the Insurance

Company is not sustainable one.

7.Per contra, the learned counsel appearing for the respondents

1 to 4/ claimants submitted that admittedly accident happened due to the rash and negligent driving of P.W.4 – Johnson and immediately after the accident, the son of the deceased made complaint before the law enforcing agency, however, R.W.2 – Police Officer made a statement that the vehicle was driven by the deceased, thereby, the charge was abated. However, no RCS notice was served on P.W.1. The learned counsel further submitted that without serving RCS notice, charge sheet cannot be filed and charge sheet has not been marked as exhibit. Except the evidence of R.W.2, no exhibit is marked to show that the motorcycle was driven by the deceased and oral evidence is not conclusive proof. Even if charge sheet is filed, the evidence recorded before the Tribunal c