1. This appeal, under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”), is filed by the appellants-claimants, challenging the order and decree dated 29.06.2018 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 29.01.2012. Stating that the deceased was working as an agricultural coolie and earning Rs.90,000/- per annum, the appellants herein, who are the husband and children of the deceased filed M.V.O.P.No.1260 of 2012 under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.9,00,000/- 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 Section 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.

4. The Tribunal, after analysing the oral evidence of PWs.1 and 2, Exs.A1 to A6 and the testimony of RW1, held that no negligence could be attributed to the rider of the motorcycle. PW2-the brother of the deceased, who was riding the motorcycle, admitted in clear terms that the accident occurred only because of the sudden appearance of an unknown Bolero vehicle and that there was no negligence on his part. Based on that admission, the Tribunal held that the accident was caused by an unidentified vehicle, and that the appellants ought to have pursued their remedy only under the Solatium Scheme, 1989. The Tribunal further noted the unexplained delay in filing the complaint and the absence of evidence establishing the nexus between the injuries and the subsequent death.

5. Heard the learned counsel for the appellants and perused the record. Despite listing this matter under the caption “For Orders”, there is no representation for the respondents. This appeal is of the year 2019. Hence, this appeal is disposed of on merits, basing on the material available on record, without waiting for the respondents to advance arguments.

6. The learned counsel for the appellants would contend that the Tribunal misread the evidence, failed to appreciate the medical record, and ought to have accepted the version of PW1 that the accident occurred due to rash and negligent driving of PW2. It is further contended that the deceased died while undergoing treatment, and therefore the Tribunal ought to have accepted the causal link and awarded compensation.

7. On the other hand, the case set up before the Tribunal by the 2nd respondent–Insurance Company is supported by the evidence of PW2 himself. PW2 categorically stated that the accident was not caused on account of his negligence and that the motorcycle did not come into contact with any other vehicle. His own admission was that, to avoid an unknown Bolero vehicle coming at high speed from the opposite direction, he swerved the motorcycle and it turned turtle. The Insurance Company contended that once negligence of the rider is ruled out, the claim petition under Section 166 of the Act is not maintainable, and that the appropriate remedy lies under the Solatium Scheme.

8. A perusal of the record shows that the evidence of PW2 is decisive. He was riding the motorcycle at the time of the accident and is a competent witness to speak to its cause. His deposition leaves no scope to attribute negligence to him. When the case of the claimants themselves is that the accident occurred due to the sudden appearance of an unknown vehicle, the claim petition under Section 166 of the Act cannot be sustained. The Act makes a clear distinction between cases where negligence of the identifiable vehicle is established, and cases where the offending vehicle remains unknown. The latter category is dealt with separately under Sections 161 and 163 of the Act. The Tribunal, on this basis, held that the claim petition is not maintainable under Section 166 of the Act. That finding is supported by the evidence. The delay of forty-three days in lodging the complaint, though not fatal in all cases, becomes relevant in the present case, as it reinforces the Tribunal’s conclusion that the narrative sought to be projected was inconsistent with the evidence of the rider. The medical record placed before the Tribunal also did not establish that the death was entirely attributable to the injuries sustained in the accident. The cause of death mentioned is “cardio-pulmonary arrest,” without any medical opinion linking it to the injuries alleged.

9. On re-appreciation of the material, this Court finds no reason to differ from the findings arrived by the Tribunal that the claimants failed to establish rash and negligent driving of the motorcycle and that the accident clearly falls within the hit and run category. Once the accident is held to be a hit and run case, the Tribunal cannot grant compensation under Section 166 of the Act. The statutory remedy is only under the Solatium Scheme, 1989. The order of the Tribunal is in accordance with law and does not call for interference by this Court.

10. In the result, this appeal is dismissed by confirming the impugned order passed by the Tribunal. However, it is made clear that the appellants are at liberty to approach the competent authority under the Solatium Scheme, 1989, and seek appropriate relief in accordance with law.

As a sequel, the miscellaneous petitions pending, if any, shall stand closed. No order as to costs.