J U D G M E N T

This Civil Miscellaneous Appeal has been preferred by the appellant/Insurance Company questioning the award of the Tribunal fixing liability on them.

2. The appellant / Insurance Company is the second respondent in MCOP.No.118 of 2018 on the file of the Motor Accidents Claims Tribunal /

Chief Judicial Magistrate Court, Tiruvarur.

3. According to the 1st respondent, on 22.07.2017, at about 22.00 hrs, the deceased Karunamoorthi was riding the Enfield Motor Cycle bearing Regn.No.TN 50B 7920 towards West to East direction, near Erukattur Dar Platn, while the deceased swerved his vehicle to avoid hitting a cow that suddenly crossed the road, he slipped, fell down and sustained head injury. Immediately he was taken to Tiruvarur Medical College Hospital where he was reported dead. Hence, the respondents 1 to 3 filed claim petition claiming a sum of Rs.25,00,000/- as compensation against the 4th respondent, being the owner of the motorcycle and the appellant, being the insurer of the motorcycle.

4. The appellant/insurance company filed counter denying the averments made in the claim petition including the manner of accident. They stated that the accident had occurred only due to the negligent driving by the deceased who drove the motorcycle without following traffic rules and invited the accident. The deceased did not wear helmet at the time of accident. Therefore, the deceased is responsible for the accident and due to his own fault, he sustained injuries and died. The deceased being the tort- feasor is not entitled to claim compensation from the appellant. The policy taken by the 1st respondent does not cover the riders for personal accident risk or any other risk. The personal accident cover for owner-driver is available only to the owner-driver named in the policy. Therefore, the policy did not cover the death of the deceased and he is not a third party. The claim is not maintainable as per Section 147 of the Motor Vehicles Act. The appellant also denied the age, occupation and income of the deceased. The compensation claimed by the respondents 1 to 3 is highly excessive and prayed for dismissal of the claim petition.

5. The 1st respondent examined himself as PW1 and marked nine documents as Exs.P1 to P9. On the side of the appellant /insurance company, one Dinesh was examined as RW1 and one document was marked as Ex.R1.

6. The Tribunal, after considering the evidence and documents filed on the side of the respondents 1 to 3 and the appellant/insurance company held that the accident occurred due to the negligent riding by the deceased and directed the appellant/Insurance company, being the insurer of the motorcycle to pay a sum of Rs.1,00,000/- as compensation to the respondents 1 to 3 under the personal accident coverage.

7. Questioning the liability fixed on them by the Tribunal, the appellant / Insurance Company has filed the present appeal.

8. Mr.J.Michael Visuvasam, learned counsel appearing for the appellant/insurance company submitted that the Tribunal having held that the petition under Section 163-A of the Motor Vehicles Act is not maintainable since the deceased was the tortfeasor, erred in holding that the respondents 1 to 3 are entitled to a compensation of Rs.1,00,000/- under personal accident coverage since the deceased / borrower of the vehicle belonging to the insurer stepped into the shoes of the owner. The learned counsel further submitted that as per the contract of insurance, the appellant is liable to pay compensation only to the owner/driver and not to a third party. Admittedly, the deceased was a third party. The learned counsel also submitted that the insurance policy is strictly governed by the terms and it is not a statutory coverage in terms of Section 147 of the Act. As per the terms, three conditions are mandatory to avail compensation under the “Personal Accident Policy”. The said conditions are -

(a) the owner-driver is the registered owner of the vehicle insured herein;

(b) the owner-driver is