J U D G M E N T

The Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, challenging the award, dated 11.04.2016 passed in MCOP.No. 324 of 2014 on the file of the Motor Accidents Claims Tribunal / Principal Sub Court, Kumabakonam.

2. The Appellant / insurer, who was made liable to pay compensation of Rs.9,10,000/- with interest at the rate of 7.5% per annum to the respondents 1 to 3 / claimants, who are the legal heirs of the deceased Nachimuthu, who died in an accident occurred on 14.11.2012, challenged the liability mulcted on it.

3. Admittedly, the first respondent / claimant is the wife and the respondents 2 and 3 / claimants are the sons of the deceased Nachimuthu. The case of the claimants is that on 14.11.2012, the deceased Nachimuthu borrowed a Maruthi Omni Van belonging to his friend Kumar, 4th respondent / first respondent and proceeded to his native place at Markkampatti, Dindigul District with his wife and second son, that when he was proceeding in Thanjavur to Trichy main road, near the Saanupatti Ganesh crusher and at about 12.30 p.m., one cow suddenly crossed the road and in order to avoid dashing against the cow, the deceased Nachimuthu turned his vehicle and at that time, the Omni van capsized and as a result of which, the said Nachimuthu had sustained injuries all over his body and immediately he taken to Government Hospital, Thanjavur and that despite the treatment, he succumbed to the injuries on that day itself.

4. The claimants' further case is that the deceased Nachimuthu was aged about 48 years at the time of accident, that he was doing flower business in a wholesale manner and was earning a sum of Rs.5,000/- per month, that the claimants were depending on the income of the deceased and that therefore, they have been claiming compensation of Rs.25,00,000/- with interest.

5. The defence of the Appellant / insurer is that the deceased Nachimuthu drove the Maruthi Omni Van in a rash and negligent manner, that since he was not able to control the Car, the Car capsized in the ditch and that since the deceased was responsible for the accident, the Appellant / insurer is not liable for the claim.

6. During enquiry before the Tribunal, the respondent Nos. 1 and 2 /

claimants 1 and 2 have examined themselves as PW.1 and PW.2 respectively and exhibited five documents as Exs. P1 to P5. The Appellant / Insurance Company has examined one Vaitheeswaran as RW.1 and exhibited a copy of the insurance policy as Ex.R1.

7. The learned Trial Judge, upon considering the evidence both oral and documentary, came to the conclusion that the deceased Nachimuthu was not a tortfeasor and that the accident was occurred as the cow suddenly crossed the road and consequently, mulcted liability on the Appellant / insurer directing them to pay a sum of Rs.9,10,000/- as compensation with interest at 7.5% per annum. Aggrieved over the said award, the Appellant / Insurance Company has come forward with the present appeal.

8. The points for consideration are:

(i) Whether the Tribunal erred in fastening the liability on the Appellant / insurer, despite the production of evidence to show that the accident was occurred only due to the rash and negligent driving of the deceased and that the deceased is the tortfeasor?

ii) Whether the impugned Award, dated 11.04.2016 is liable to be set aside?

9. The learned counsel appearing for the Appellant / Insurance Company would strenuously contend that the deceased himself was the tortfeasor as he had caused the accident by his own negligence and as such, the claim petition itself is not legally sustainable under the provisions of Motor Vehicles Act, that the Tribunal ought to have held that the deceased Nachimuthu had borrowed the vehicle from the 4th respondent / 1st respondent and as such, the deceased stepped into the shoes of the actual owner of the vehicle and he is not a third party, that since the deceased had stepped into the shoes of the owner of the vehicle, the cla