IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.11.2023 CORAM:

THE HONOURABLE MR. JUSTICE K.RAJASEKAR Civil Miscellaneous Appeal No.202 of 2021 and Civil Miscellaneous Petition No.1412 of 2021 The Branch Manager, The National Insurance Company Limited, Branch Office, Anuradha Complex, III Floor, Bangalore Road, Opp. To Raja Theatre, Krishnagiri – 635 001. ... Appellant / 2^nd respondent Vs.

1. Victor Jayaraj ... Respondent / Petitioner

2. S. Ravi ... Respondent/1^st Respondent [R2 remained ex-parte before Tribunal.

Hence, notice to R2 dispensed with]

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and decree dated 31.10.2019 made in M.C.O.P.No.478 of 2018 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Hosur.

For Appellant : Ms. R. Sree Vidhya For R1 : Mr. S. P. Yuvaraj For R2 : No appearance JUDGMENT This Civil Miscellaneous Appeal has been filed by the Insurance Company, challenging the Award passed in M.C.O.P.No.478 of 2018, dated 31.10.2019 by the Motor Accidents Claims Tribunal, Additional District Judge, Hosur, wherein, the Tribunal has directed the Insurance Company to indemnify the first respondent and to pay compensation for a sum of Rs.3,71,364/-.

2. The parties are referred to hereunder according to their litigative status and ranking before the Tribunal.

3. The case of the claimant is that he is an auto driver, and that on 10.06.2016 at about 17.00 hours on the Rayakottai to Krishnagiri Road, while he reached near Vajjirapalayam Down, a cow suddenly crossed the road and to avoid hitting on the cow, he applied sudden brake in which, the auto was capsized and he sustained injuries. Immediately, he was admitted in to the Government Head Quarters Hospital, Krishnagiri for treatment and thereafter he was admitted into Private Hospital, Banglore for further treatment. A Criminal case in Crime No.288/2016 under Sections 279 and

377 IPC was also registered against the claimant herein based on the complaint given by the owner of the Auto. After undergone treatment, the claimant has come forward with the claim petition seeking compensation for a sum of Rs.15,00,000/-.

4. The owner of the Auto who was arrayed as first respondent was remained ex-parte. The second respondent - Insurance Company filed counter and contended that since the claimant himself is the tortfeasor, he is not entitled to claim any compensation under any of the provisions of the Motor Vehicles Act. It is also contended that the auto was not having any Permit or Fitness Certificate at the relevant time. The claimant was also not having 'Badge endorsement' to drive the auto ”Three wheeler, Transport Vehicle”. Even though, he is having licence to drive the light motor vehicle (LMV) there is a violation of policy condition and that they could not be directed to pay the compensation. Hence, prays to dismiss the claim.

5. Based on the evidences placed on record, the Tribunal in Point No.1 has held that there was an employer - employee relationship between the first respondent and the claimant, hence the first respondent is liable to pay the compensation and also held that on behalf of the first respondent, second respondent is liable to indemnify the first respondent. In Point No.2, the Tribunal has quantified the compensation and awarded a sum of Rs.3,71,364/- as compensation to the claimant.

6. Aggrieved over the direction of the Tribunal that the Insurance Company to indemnify the owner of the vehicle, the Insurance Company has come forward with this appeal.

7. M/s. R. Sreevidhya, learned counsel for the Insurance Company has submitted that the claimants have filed their claim petition under Section 166 of the Motor Vehicles Act based on the fault liability. In this case, the claimant himself is a tortfeasor and there is no involvement of third party vehicle, hence as per the Judgment of the Apex Court in Ram Khiladi and Others vs. United India Insurace Company Limited and Others