MD. ISMAIL Vs. G.VIJAYANATH

JUDGEMENT

(1.) This appeal, under Sec. 173 of the Motor Vehicles Act, 1988 (for short "the Act"), is filed by the appellants-claimants, challenging the order and decree dtd. 29/6/2018 passed in M.V.O.P.No.1260 of 2012 by the Chairman, Motor Accidents Claims Tribunal-cum-Chief Judge, City Civil Court at Hyderabad (hereinafter referred to as "the Tribunal"), whereby the Tribunal dismissed the said O.P.

(2.) The case of the appellants is that on 18/12/2011, the deceased- Abidabee along with her cousin-Md.Ismail, were travelling on hero honda motorcycle bearing No.AP 23 P 0717 and when the vehicle reached near Mahindra Dhaba at Huggelly Village, the motorcycle turned turtle and both fell down, due to which, the deceased sustained grievous injuries, was shifted to Gandhi Hospital and, after undergoing treatment for about forty-three days, died on 29/1/2012. Stating that the deceased was working as an agricultural coolie and earning Rs.90,000.00 per annum, the appellants herein, who are the husband and children of the deceased filed M.V.O.P.No.1260 of 2012 under Sec. 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.9,00,000.00 with interest @ 18% per annum from the date of accident till the date of realization of the entire amount.

(3.) Before the Tribunal, the respondent No.1 remained ex parte. The 2nd respondent-Insurance Company opposed the claim and pleaded that the accident was not caused on account of negligence of the motorcycle rider. It was specifically contended that the rider of the motorcycle, clearly admitted that an unknown Bolero vehicle came in a rash manner from the opposite direction, forcing him to swerve the motorcycle to the extreme left, due to which it skidded. On that basis, the Insurance Company contended that the accident falls within the definition of a hit and run accident under Sec. 161 of the Act that no negligence can be attributed to the insured vehicle, and that the appellants have to approach the Claims Enquiry Officer under the Solatium Scheme, 1989. The Insurance Company also questioned the delay of forty-three days in lodging the complaint and the absence of medical evidence connecting the injuries to the death.