BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 19.09.2022 Pronounced On : 07.11.2022 CORAM THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR C.M.A(MD)No.225 of 2022

1.Tamil Ilakkiya

2.Mathumidha (Minor)

3.Vedha Sri (Minor)

4.Thirumatthal : Appellants /Petitioners Vs.

The Branch Manager, The Oriental Insurance Company Limited, 2nd Floor, Kamatchiamman Complex, Opposite to Kamatchiamman Kovil, Dindigul Road, Oddanchathiram Town, Dindigul District. : Respondent/ Respondent (The appellants 2 and 3 minors rep.by their mother and Guardian Tamil Ilakkiya/first appellant)

PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the judgment and decree, dated

14.08.2019 passed in M.A.C.O.P.No.76 of 2015 on the file of the Motor Accident Claims Tribunal (Additional District Court) (Full Additional Charge), Dindigul.

For Appellants : Mr.C.K.M.Appaji, For Respondent : Mr.J.S.Murali

J U D G M E N T

The Civil Miscellaneous Appeal is directed against the award passed in M.A.C.O.P.No.76 of 2015, dated 14.08.2019 on the file of the Motor Accident Claims Tribunal/Additional District Court, Dindigul, dismissing the claim petition filed under Section 163(A) Motor Vehicle Act.

2.Admittedly, the first appellant/claimant is the wife, the appellants

2 and 3/claimants 2 and 3 are the daughters and fourth appellant/fourth claimant is the mother of the deceased Sadhasivam.

3.The case of the claimants is that on 02.07.2013, at about 08.30 pm, when the deceased Sadhasivam was travelling as a pillion rider with his friend Kalimuthu @ Kalai in his two wheeler bearing registration No.TN-60-Y-5895, near Kaveriyammapatti High School in Oddanchathiram, a dog suddenly crossed the road, as a result of which, both of them fell down and sustained serious injuries, that both of them were taken to Kovai Medical Centre for treatment and thereafter, taken to Oddanchathiram Government Hospital and that the said Sadhasivam had succumbed to the injuries at 02.00 pm on 03.07.2013.

4.It is the further case of the claimants that since the accident was occurred due to the crossing of dog and the respondent is the insurer of the vehicle involved in the accident, the respondent is liable for the claim.

5.The defence of the respondent/insurer is that as per the terms of the contract of the Insurance, the respondent/insurer is liable to indemnify the owner of the insured vehicle against any award and as such, the respondent is not at all liable to pay any compensation directly; that had the driver was cautious enough to drive the vehicle abiding by the traffic rules as envisaged in the Motor Vehicles Act, the alleged accident would have been avoided; that the insurance policy for the Hero Honda two wheeler has been issued in the name of the deceased Sadhasivam, but the deceased had not driven the vehicle and even in that case P.A claim has to be made separately and not in Motor Accident claims Petition and that the petition is devoid of merits and the same is liable to be dismissed.

6.During enquiry before the Tribunal, the appellants/claimants have examined the first appellant as P.W.1 and one Karupusamy, alleged to be the occurrence witness as P.W.2 and exhibited six documents as Ex.P.1 to Ex.P.6. The respondent/insurer has examined its Senior Assistant Thiru.T.Thangavelu as R.W.1 and exhibited the photo copy of the Policy of the vehicle, owned by the deceased Sadhasivam as Ex.R.1.

7.The learned trial Judge, upon considering the evidence, both oral and documentary and on hearing the arguments of both the sides, by holding that the petition filed under Section 163(A) of Motor Vehicles Act is not maintainable, dismissed the claim petition. Aggrieved by the dismissal of the claim petition, the claimants have come forward with the present appeal.

8. The points that arises for consideration are;

(i) Whether the Tribunal erred in dismissing the claim petition by holding that the petition seeking for compensation in a road accident by a owner of