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5. On being served with the summons, the second respondent/Insurance Company filed a counter denying the contentions of the claimants. During the https://www.mhc.tn.gov.in/judis 3 of 18  C.R.P.(PD).Nos.1166 & 1173 of 2023 course of enquiry, an additional counter came to be presented by the second respondent. In the said counter, they took a plea admitting to the fact that the deceased was riding pillion in the motor cycle and it was running on the State Highways. They would state that in order to avoid a large unguarded pothole on the road, the rider Madhan Kumar applied a sudden brake and could not control the motor vehicle and as a consequence, the deceased pillion fell in front of the bus.

6. The second respondent/Insurance Company would also rely upon the accident sketch prepared by the police for vouching the existence of two large unguarded potholes. They would plead that if it were not for the potholes, the accident would not have occurred. On the basis of these pleadings, they took out applications to implead the State Highways as well as the National Highways. These applications filed to implead were returned by the learned Judge stating that the Motor Accident claims Tribunal does not have jurisdiction to pass an award against the State Highways.

13. Based on this FIR, he would state that when PW2 himself admitted that the accident had taken place on account of the potholes, the impleading of National Highways and State Highways is essential. He would also rely upon a judgment of the Supreme Court in Oriental Insurance Co. Ltd., vs. Premlata Shukla and Others, (2007) 2 TNMAC 106 (SC) to the effect that the FIR must be read as a whole and since the FIR in this case discloses the existence of the potholes, the State Highways and the National Highways are necessary parties to the proceedings.

22. In view of the above, the verdicts relied upon by Mr.M.Somasundaar would show that the claimants themselves had alleged negligence on the part of the Railway Administration in the first case and Bangalore Mahanagara Palike in the second case.

23. Quite contrary to these facts, a perusal of the claim petition would show that the specific plea of the claimant is that the vehicle of the first respondent had been driven in a rash and negligent manner with great speed and it had hit the motor cycle causing the accident. The plea of the unguarded potholes, as found by the learned Trial Judge, was projected for the first time in the additional counter that was filed by the second respondent/Insurance Company. It is the case which has been projected by the second respondent that the accident occurred due to the potholes. It is not the case of the claimants that the accident occurred due to the existence of the potholes. https://www.mhc.tn.gov.in/judis 12 of 18  C.R.P.(PD).Nos.1166 & 1173 of 2023