IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.11.2023 CORAM:

THE HONOURABLE MR. JUSTICE K. RAJASEKAR C.M.A. No. 263 of 2021 and C.M.P. No. 1768 of 2021 The Branch Manager, M/s. Iffco Tokio General Insurance Company Limited, No.28, 1st & 2nd Floor, North Usman Road, Chennai - 600 017. ... Appellant / 2nd Respondent Vs.

1. Selvi Priyangaa ... 1st Respondent / Petitioner

2. Thiru. Udditpa Ray ... 2nd Respondent / 1st Respondent Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and decree dated 12.03.2020 passed in M.C.O.P. No.455 of 2018 on the file of the District Judge, Motor Accident Claims Tribunal, Pondicherry.

For Appellant : Mr. E. Rajadurai For R1 : No Appearance For R2 : Mr. J. Prasanna Kumar JUDGMENT This Civil Miscellaneous appeal has been filed by the insurance company challenging the liability fixed on them in payment of compensation as per the Judgment and Decree passed in M.C.O.P. No.455 of 2018, dated 12.03.2020 on the file of the District Judge, Motor Accident Claims Tribunal, Pondicherry.

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

3. The case of the claimant is that on 23.02.2018, at about

06:00PM, she was riding her two wheeler bearing Registration No. PY-01- CE-9366 on the Ambur Salai from South to North direction and while she reached near Chetty Street, a car bearing Registration No. PY-01-BV-0990 driven by its driver in rash and negligent manner overtook the claimant and stopped in front of her and suddenly the driver of the car has opened the door, due to this sudden action, the claimant dashed on the door of the car and fell down and at the same time, another unknown car, which came behind and dashed on her, which resulted in causing injuries to the claimant.

She has also lodged a criminal complaint stating the very same fact and the same was registered in Crime No.47 of 2018 u/s. 279, 338 of I.P.C. Due to the injuries sustained, the claimant has come forward with a claim petition seeking compensation for a sum of Rs.10,00,000/-.

4. The first respondent is the owner and the second respondent is the insurer of the car bearing Registration No. PY-01-BV-0990. The first respondent has not contested the claim before the Tribunal and remained ex- parte. The second respondent - insurance company, who is the insurer of the offending car bearing Registration No. PY-01-BV-0990 has filed a counter and contested the claim by disputing the manner in which the accident has taken place and also contended that the claimant has sustained injuries only due to negligent act on the part of the driver of the unknown car, hence the claim petition shall be maintained only against the unknown car and not against this respondent and also the compensation claimed under various heads is on the higher side, and prayed to dismiss the claim petition.

5. Before the Tribunal, on the side of the claimant, P.W.1 was examined and Exs.P.1 to P.19 were marked. On the side of the respondent, R.W.1 was examined and Ex.R.1 to R.3 were marked. The disability certificate of the claimant is also marked as Ex.C.1.

6. Based on the evidence placed on record, the Tribunal in point No.1 has held that the negligent act on the part of the driver of the car bearing Registration No. PY-01-BV-0990 is responsible for the accident. In point No.3, the Tribunal has quantified and granted a compensation for a sum of Rs.5,11,000/- along with interest @ 7.5% per annum from the date of filing of petition till the date of realization. In point No.4, the Tribunal has fixed the liability on the second respondent - insurance company to pay the compensation to the claimant.

7. Aggrieved over the liability fixed on the second respondent-

insurance company, this appeal is filed by the insurance company.

8. The learned counsel appearing for the insurance company has mainly contended that initially the driver of the first respondent has opened