IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.08.2024 CORAM THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH CMA No.1904 of 2024 Ramesh (died)

1.R.Valarmathy

2.R.Suseethra

3.R.Karan ... Appellants .vs.

1.Sathish

2.HDFC ERGO General Insurance Co. Ltd., Empaire Arcate No.356/1, 1^st Floor, Opp. New Bus Stand, Omalur Main Road, Salem.

3.ICICI Lombard General Insurance Co., Ltd., No.84 and 85, Wall Tax Road, Chennai – 3. ..Respondents [R3 amended vided Court dated 02.07.2024 made in CMP No.13120 of 2024 in CMA Sr. No.61896 of 2023]

[Cause title accepted vide Court order dated 21.08.2023 made in CMP No.16408 of 2023 in CMA SR No.61896 of 2023]

Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the decree and judgment dated 12.08.2021 made in MCOP No.2296 of 2016, on the file of the Motor Accident Claims Tribunal, Special Subordinate Court-I, Salem.

For Appellant : Mr.V.Kumaravelan For Respondents : Mr.N.Somasundar for R2 Ms.R.Sreevidhya for R3

JUDGMENT

The claimants who are the wife and children of the deceased Ramesh, have filed this appeal against the Award passed by the Tribunal in MCOP No.2296 of 2016, dated 12.08.2021, aggrieved by the fact that the Insurance Company was exonerated from paying the compensation and the entire compensation was directed to be paid by the owner of the vehicle who is the 1^st respondent herein.

2.The case of the claimants is that on 11.02.2016, the deceased was travelling in a two wheeler at Salem-Veeranam main road and at about 20.00 hours, the offending vehicle which was an Auto came in the opposite direction and it dashed on the vehicle. As a result of which, the deceased was thrown out of the two wheeler. He sustained grievous injuries and he took treatment for nearly 48 days as an inpatient at KMCH Hospital, Coimbatore. Thereafter, he again took treatment as an inpatient for 14 days at SMCH Hospital, Salem. Unfortunately, he succumbed to the injuries. An FIR was also registered against the Driver of the offending vehicle in Crime No.144 of 2016. It is under these circumstances, the claim petition came to be filed before the Tribunal seeking for payment of compensation.

3.The Tribunal on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the accident had taken place only due to the rash and negligent driving on the part of the driver of the offending vehicle.

4.The Tribunal thereafter went into the issue of the liability of the Insurance Company to pay the compensation. While dealing with the same, the Tribunal found that the Auto was not covered by any subsisting policy and therefore, the 2^nd respondent was exonerated from payment of compensation. The 3^rd respondent is none other than the insurer of the two wheeler in which the deceased was travelling. Hence, the 3^rd respondent was also exonerated from payment of any compensation.

5.The Tribunal thereafter proceeded to fix the total compensation at Rs.78,41,918/- and directed the 1^st respondent to pay the compensation with interest at the rate of 7.5% per annum.

6.The claimants aggrieved by the fact that the Insurance Company was exonerated from payment of compensation, have filed the present appeal before this Court.

7.Heard Mr.V.Kumaravelan, learned counsel appearing on behalf of the appellant, Mr.N.Somasundar, learned counsel appearing on behalf of the 2^nd respondent and Ms.R.Sreevidhya, learned counsel appearing on behalf of the 3^rd respondent.

8.This Court has carefully considered the submissions made on either side and also the materials available on record.

9.In the considered view of this Court, there was no subsisting insurance policy covering the offending vehicle and therefore, there is no question of directing the 2^nd respondent Insurance Company to pay the compensation. The 3^rd respondent is none other than the insurer of the two wheeler in which the deceased was travelling. No negligence found against the rider of the two