Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1998 against the judgment and decree dated 31.01.2002 made in M.C.O.P No. 1011 of 2000, on the file of the Motor Accidents Claims Tribunal (II Additional District Judge), Tirunelveli.
:JUDGMENT
The Insurance Company has filed this appeal. The accident in this case happened on 19.07.2000 While the deceased C.P Mahesh was riding his motorcycle, insured with the appellant, the said motorcycle collided with the Transport Corporation bus. In that accident, he died. On his death, the wife and minor daughter have filed a claim for compensation. The wife was examined as P.W.1 and Exs.A1 to A9 were marked which are as follows:-
1. Ex.A1 - Attested copy of First Information Report.
2. Ex.A2 - Attested copy of Inspector of Motor Vehicles.
3. Ex.A3 - Attested copy of Inspector of Motor Vehicles.
4. Ex.A4 - Attested copy of Postmortem Report.
5. Ex.A5 - Attested copy of Charge sheet.
6. Ex.A6 - True copy of Legal Heirs Certificate.
7. Ex.A7 - Salary certificate issued by the Head Master, Government High School, North Chelialur.
8. Ex.A8 - Attested Copy of Observation Mahazar.
9. Ex.A9 - Attested copy of Rough Sketch.
2. On behalf of the Transport Corporation, one Subramanian was examined as R.W.1 No documents were marked either by the Transport Corporation or by the Insurance Company. Based on the oral evidence, the Tribunal came to the conclusion that the driver of the motorcycle and the driver of the Transport Corporation bus are equally negligent and responsible for the accident. Such finding of the Tribunal is not challenged by the claimants.
3. The Insurance Company resists the claim stating that no policy has been marked and there is no proof to show that the policy covers personal accident cover. In any event, such a claim was not made to the Insurance Company separately. The Tribunal having held that the negligence was on both the drivers awarded a sum of Rs. 3,80,339/- as compensation with interest at the rate of 9%. The liability insofar as the Transport Corporation was apportioned at 50%. The said 50% amount apportioned as against the Transport Corporation has been deposited. No appeal has been filed by the Transport Corporation.
4. As far as the balance 50% of the apportioned amount is concerned, the Tribunal held that the insurance company/the insurer of the motorcycle in which the deceased was riding has to pay. Aggrieved by the same the present appeal has been filed.
5. Heard Mr. S. Kumar, learned counsel for the appellant, Mr. G. Thalaimutharasu, learned counsel for the claimants and Mr. D. Sivaraman, learned counsel appearing for the Transport Corporation.
6. In this case, the Tribunal has held that the deceased C.P Mahesh who was the owner and the person who rode the two wheeler involved in the accident was equally responsible for the accident. Therefore, the deceased being partly responsible for the accident is also the tort feasor.
7. In respect of a claim for personal accident cover, the claimants will have to approach the insurance company independently based on the policy. If the said claim is not accepted, the remedy is not before the Motor Accidents Claims Tribunal. The claimants therefore are not entitled to claim compensation from the appellant the insurer of the motorcycle in which the deceased died as a tort feasor, as against his own insurance company and consequently the claimants.
8. In such view of the matter, the appellants are not liable to compensate the claimants for the balance 50% of the amount as held by the Tribunal. The appeal is allowed. The connected civil miscellaneous petition is closed. No costs.