JUDGMENT

This Civil Miscellaneous Appeal has been filed as against the order passed in M.C.O.P.No.2839 of 2004 on the file of the Motor Accidents Claims Tribunal/Additional District and Sessions Judge, Fast Track Court No.III, Madurai, Wherein the first respondent herein has filed claim petition as against the second and third respondents herein and the appellant/third respondent.

2. The Tribunal has awarded a sum of Rs.95,000/- with interest @ 9%

per annum by fixing liability of 50% as against the second respondent/first respondent herein and 50% as against the appellant/third respondent. As against the award passed by the Tribunal the appellant/third respondent has filed this present Civil Miscellaneous Appeal.

3. For the sake of convenience and brevity, the parties herein after will be referred to as per their status/ranking in the Tribunal.

4. The brief facts of the petition are as follows:

On 12.09.2004 at about 7.35 pm., when the petitioner was travelling as a passenger in the car bearing Reg.No. TN 32 3375 belonging to the second respondent and insured with the third respondent from Mangulam to Uthankudi, at that time, the first respondent driver drove the bus bearing Reg.No. TN 32 N 0797 in a rash and negligent manner and dashed against the car, as a result of which the petitioner sustained grievous injuries. The accident took place due to negligence of the driver of the first and second respondent drivers. The First Information Report has been registered in Crime No.718 of 2004 as against the driver of the first respondent. The petitioner sustained grievous injuries and thereby suffered permanent disability. Hence the present petition has been filed seeking compensation of Rs.2.5 lakhs.

5. The brief averments of the counter filed by the first respondent are as follows: The averments made in the petition are all false. The manner of accident, age, income of the petitioner, nature of injuries sustained by him are all denied. The case was registered as against the driver of the first respondent and thereafter, the same was closed as Mistake of Fact, therefore this petition is liable to be dismissed as against this respondent. The accident took place due to the rash and negligence of the driver of the second respondent and the first respondent is no way responsible for the accident, therefore, the petition is liable to be dismissed.

6. The brief counter filed by the third respondent are as follows:

that the averments in the petition are denied as false. The manner of accident, age, income, nature of injuries sustained by the petitioner are all denied. The accident took place only due to the rash and negligent driving of the driver of the first respondent. The First Information Report also registered as against the driver of the first respondent, thereby the third respondent is not liable to pay compensation to the petitioner. The driver of the second respondent has no valid licence at the time of accident and thereby the petition is liable to be dismissed.

7. Before the Tribunal, the second respondent/owner of the car remained exparte. Inorder to prove the case of the petitioners P.W.1 to P.W. 3 were examined and marked documents Exps.P.1 to P.7 and also marked exhibits Ex.X.1 to X4. On the side of the respondent R.W.1 to R.W. 3 were examined and Exs.R.1 to R7 were marked.

8. After hearing both sides and perusing the documents available on record, the Tribunal has awarded a sum of Rs.95,000/-along with interest @9%per annum by fixing 50% liability as against the first respondent and 50% liability as against the second and third respondents. Aggrieved by the above said order the third respondent/ Insurance company has filed this appeal on various grounds.

9. The learned counsel appearing for the appellant would contend that the accident took place only due to the rash and negligent driving of the bus driver i.e., first respondent and the Tribunal has fixed liability for composite negligence on the part of the driver of the second re