J U D G M E N T

This Civil Miscellaneous Appeal is filed against the Award and decree dated 14.07.2017, made in M.C.O.P. No.393 of 2015, on the file of the Motor Accident Claims Tribunal (Court of Chief Judicial Magistrate), Dharmapuri.

2. The appeal is filed by the Insurance Company. The 1st respondent is the claimant. The 2nd respondent is the owner and the appellant is the insurer of the offending bus bearing Regn. No.TN-48-Q-0333.

3. The case of the claimant is that, on 06.03.2015, the 1st respondent/claimant was riding his two wheeler bearing Regn. No.TN-29-A- 6510 having one Suresh as pillion rider, from East to West in Dharmapuri to Pennagaram main road, slowly and carefully, keeping on the left side of the road. At about 5.30 p.m., near Sompatty bus stop, the college bus of the 2nd respondent bearing Regn. No.TN-48-Q-0333 was coming on the opposite direction, driven by its driver in a rash and negligent manner. In the meantime, a two wheeler bearing Regn. No.TN-29-AQ-8007, driven by one Manoj Kumar, was coming in front of the bus. On seeing the above two wheeler, the 1st respondent/claimant almost stopped his two wheeler on the left side of the road. However, the said Manoj Kumar, dashed against his two wheeler and fell down on the road. At that time, the said bus ran over the Manoj Kumar and dashed against the 1st respondent/claimant with two wheeler and due to that impact, the 1st respondent/claimant sustained injuries.

4. The injured filed a claim petition in M.C.O.P. No.393 of 2015 on the file of the Motor Accident Claims Tribunal (Court of Chief Judicial Magistrate), Dharmapuri, claiming compensation of Rs.10,00,000/- stating that at the time of accident, he was aged 35 years and was running a provisional shop and earning Rs.20,000/- per month. Due to the accident, he sustained fracture on the right hand and right leg and also underwent a surgery and was not able to walk and do any work as before the accident.

5. Before the Tribunal, the owner of the offending bus/2nd respondent herein remained ex-parte.

6. The Tribunal, after hearing the arguments and considering the materials, awarded compensation of Rs.3,99,097/- and directed the 2nd respondent therein/insurer of the offending bus to pay the said compensation with costs and interest at the rate of 7.5% per annum from the date of claim petition till realization.

7. Aggrieved by the Award passed by the Tribunal, the Insurance Company has filed the present appeal.

8. The learned counsel for the appellant/Insurance company submitted that the Tribunal failed to consider Ex.P.1/FIR, in which, the complainant who is the father of the deceased Manoj Kumar had clearly stated that the accident had occurred only due to the rash and negligent riding of the deceased Manoj Kumar, who rode the two wheeler bearing Regn. No.TN-29-AQ-8007 and that the said bus did not have any impact with the two wheeler of the 1st respondent/claimant. The accident occurred due to head-on-collision between the said 2 two wheelers, due to which, both the riders of the two wheelers fell down. At that time, the back-side wheel of the bus ran over the said Manoj Kumar and it is not due to the rash and negligent driving of the driver of 2nd respondent's bus. Even the charge sheet and the rough sketch clearly show that the accident had occurred not due to the rash and negligent on the part of the driver of the 2nd respondent's bus which was insured with the appellant/Insurance company. The Tribunal failed to consider the same and simply fastened the liability on the driver of the bus. Therefore, the appellant/Insurance Company is not liable to pay any compensation to the 1st respondent/claimant. Hence, the impugned Award passed by the Tribunal is liable to be set aside.

9. The learned counsel for the 1st respondent submitted that the

1st respondent/claimant who sustained injuries in the said accident, was examined as P.W.1 and he has clearly stated that, on seeing the two wheeler which was coming on the oppos