IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 22.12.2023 PRONOUNCED ON: 17.04.2024 THE HONOURABLE MR. JUSTICE K. RAJASEKAR C.M.A. No. 2342 of 2021 and C.M.P. No. 13163 of 2021 M/s. IFFCO-TOKIO General Insurance Co. Ltd., No.28, North Usman Road, Chennai. ... Appellant / 3^rd Respondent Vs.

1. Vijayakanth ... Respondent / Petitioner

2. Sivakumar

3. Sivakandan ... Respondents / Respondents 1& 2 Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 to set aside the award and decree dated 11.11.2020 made in M.C.O.P. No. 304 of 2017 on the file of the Special Sub Judge, Motor Accident Claims Tribunal, Special Sub Court No.II, Villupuram.

For Appellant : Mr. S. Arunkumar For R1 : Mr. M. Lokesh For RR 2 and 3 : Notice Dispensed With JUDGMENT This Civil Miscellaneous Appeal has been filed by the Insurance Company challenging the liability fixed on them to pay compensation to the claimant / insurer as per the award made in M.C.O.P. No. 304 of 2017, dated 11.11.2020 on the file of the Special Sub Judge, Motor Accident Claims Tribunal, Special Sub Court No.II, Villupuram.

2. For the sake of convenience, the parties are referred herein according to their litigative status before the Tribunal.

3. On 01.02.2012, at about 6:30 AM, the claimant was riding his TVS Apache motorcycle bearing Registration No.TN-32-F-1229 from East to West in Villupuram - Pondy N.H along with two school going kids, while the claimant was crossing the Tamaraikulam Post Office, a TVS XL Super motorcycle belonging to the first respondent bearing Registration No.PY- 01-AM-7234, driven by the second respondent in a rash and negligent manner, suddenly crossed the road and dashed against the claimant's vehicle, thereby causing grievous injuries. For the injuries sustained, the claimant has come forward with claim petition seeking compensation for a sum of Rs.2,00,000/- by invoking Section 166 of the Motor Vehicles Act, 1988.

4. The first and second respondents have not contested the claim and remained ex-parte. The third respondent – insurance company, who is the insurer of the claimant's vehicle has filed counter and contended that the claimant and insurer are one and the same. Further contended that, since the claimant has categorically pleaded that the second respondent has rode the first respondent's motorcycle in a rash and negligent manner and caused the accident, the first and second respondent alone are liable to pay compensation to the claimant. This respondent being a insurer of the claimant's motorcycle is not liable to pay any compensation.

5. After due enquiry, the Tribunal has held that the F.I.R was registered against the claimant, hence awarded compensation for a sum of Rs.1,00,000/- by invoking Personal Accident Coverage and directed the insurance company to pay compensation to the insurer/ claimant.

6. Aggrieved over the award, the insurance company has filed this appeal challenging the liability fixed on them to pay compensation under Personal Accident Cover.

7. The learned counsel for the insurance company submitted that it is the specific case of the claimant that the second respondent is the tortfeasor, hence the first and second respondents alone are liable to pay compensation to the claimant but the Tribunal has not properly appreciated the evidence place on record and directed the insurance company to pay compensation by invoking Personal Accident Coverage. He further submitted that the injuries sustained is not Schedule injury to be compensated, as agreed in the insurance contract and the claimant has filed claim petition by invoking Section 166 of the Motor Vehicles Act, whereas the Section 166 is based on the fault liability, the claim petition is not maintainable.

8. Per contra, the learned counsel appearing for the claimant submitted that the Tribunal has rightly appreciated the evidence placed on record and held that the F.I.R was registered against the claimant herein, hence instead of directing the first and s