C.M.A.No.3312 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
C.M.A. No.3312 of 2009
AND M.P.No.1 of 2010
The Manager,
The New India Assurance Co.Ltd,
No.69/70, Nadu Street,
Kancheepuram District. .. Appellant
Vs.
1. Tmt.Chinnaponu
W/o. Muniyandi
2.Minor.Yuvaraj
S/o.Muniyandi
3.Minor.Ruthra,
D/o. Muniyandi
(Minors represented by their mother/guardian
Chinnaponnu)
4.Dakshnamoorthy,
S/o. Munusamy Naicker
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https://www.mhc.tn.gov.in/judis/
C.M.A.No.3312 of 2009
5.A.Ameer,
BSA Ibu Traders
No.18/A, Pattala Street,
Kancheepuram Taluk & District. ..Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173
of Motor Vehicles Act, 1988, against the judgment and decree
dated 28.10.2008, made in M.C.O.P. No.294 of 2005, on the file of
the Subordinate Judge, Kancheepuram.
For Appellant : M/s.J.Chandran
For Respondents: Mr.Richard Suresh – R1 to R3
Mr.K.Goviganesan - R4
JUDGMENT
The matter is heard through "Video Conferencing". This Civil Miscellaneous Appeal has been filed by the appellant-Insurance Company against the judgment and decree dated 28.10.2008, made in M.C.O.P. No.294 of 2005, on the file of the Subordinate Judge, Kancheepuram. ___ 2/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3312 of 2009
2.The appellant is the 2nd respondent in M.C.O.P. No.294 of 2005, on the file of the Subordinate Judge, Kancheepuram. The respondents 1 to 4 have filed the said claim petition, claiming a sum of Rs.15,00,000/- as compensation for the death occurred in the road accident that took place on 02.05.2005.
3.According to the respondents 1 to 4/claimants, on 02.05.2005 at about 8.30 hours when the driver of the auto rickshaw bearing Reg.No.TN21 F 1033 proceeding with a poultry load at a place near Annamalai Naicker pumpset, Kalakattur, a driver of the auto drove the auto in a rash and negligent manner and dashed against the tamrind tree. Due to the accident, the pillion rider and load man Muniandi sustained fatal injuries and died on the spot. Being the legal heirs of the deceased Muniandi, the claimants/respondents 1 to 4 herein have filed a claim petition before the tribunal, claiming compensation against the owner of ___ 3/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3312 of 2009 the vehicle and the Insurance Company for a sum of Rs.15,00,000/- .
4.The appellant-Insurance Company, filed counter statement before the tribunal and denied the subsistences of vehicular records namely Driving License, permit, FC and RC. It is further stated that the alleged vehicle is a goods career auto, therefore the passengers are not supposed to travel in the said vehicle, therefore, they are not liable to pay compensation as claimed by the claimants. The Insurance Company also does not admit the age, avocation, income of the deceased.
5.Before the Tribunal, the 1st respondent examined herself as P.W.1, the eyewitnesses were examined as PW2 & PW3 and marked documents ExP1 to P5. The appellant examined its official as R.W.1 and no documents were marked.
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6.The Tribunal after considering the pleadings, oral and documentary evidence, fixed liability on the driver of the alleged vehicle and awarded compensation of Rs.4,30,000/- under various heads together with interest at 7.5% per annum payable by the Insurance Company being the insurer of the vehicle.
7.Challenging the liability fastened on them by the award dated 28.10.2008, made in M.C.O.P. No.294 of 2005, the appellant
- Insurance Company has come out with the present appeal.
8. The learned counsel for the appellant/Insurance Company that the deceased Muniandi had travelled in a Mini Auto, a goods vehicle. There is no coverage for the passenger and in the registration certificate also it has been specifically mentioned that the seating capacity is one including driver and there is no provision for safety travelling of passenger. The learned counsel further submitted that the tribunal considering the travelling of the ___ 5/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3312 of 2009 deceased as a passenger in the absence of proof of employment neigher as a load man nor in the capacity of pillion rider, ought not to have held that the insurance company is liable to pay compensation.
9. On the other hand the learned counsel for the respondents 1 to 4/claimants submitted that though the appellant denied the policy of insurance and the validity of the vehicle travelled by the deceased bearing Reg.No. TN21 F 1033, the Insurance Company has not adduced any evidence or produced any document to prove the said contention. Further RW1 in his evidence has admitted that as per Ex.A5- copy of the policy, a premium has been paid to the driver and the other person. He has further stated that as per the said policy, three persons including driver are covered under the policy. Based on the aforesaid validity of the policy issued by the Insurance Company, the tribunal has fixed the liability on the insurance company and awarded compesation to the claimants, ___ 6/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3312 of 2009 therefore, the compensation awarded by the tribunal is fair and does not require any modification and the appeal filed bythe Insurance Company is liable to be dismissed.
10.Heard learned counsel appearing for the appellant- Insurance Company as well as the respondents and perused the materials available on record.
11. From the materials available on record, it is seen that the main contention of the appellant is denial of insurance policy and the validity of the alleged vehicle bearing Registration No.TN21 F 1033, but to prove the same, the appellant had not produced any evidence or documents before the tribunal as well as this Court. Further contention of the appellant is that the deceased Muniandi was a gratious passenger and the policy that exists at the time of the accident shall not cover the gratitious passenger and therefore, the claimants are not entitled to get any compensation. But, it is ___ 7/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3312 of 2009 seen from the records, RW1 admitted before the tribunal that alleged vehicle bearing Reg.No. TN21F 1033 had valid insurance policy covering the deceased Muniandi, the load man. The evidence of RW1 before the tribunal is extracted below;
“tpgj;Jf;Fz;lhd thfdk; v';fs; epWtdj;jpy; tpgj;J fhyj;jpy; fhg;gPL bra;ag;gl;Ls;sJ./ v';fs; fhg;gPL fHfj;jpy; tH';fg;gl;l fhg;gPL rhd;wpjHpd; ????????; efy; k.rh.M 5 mjpy; oiutUf;Fk; ,d;bdhU ntiyahSf;Fk; gphpkpak; bgwg;gl;ljhf Fwpg;gplg;gl;Ls;sJ/ k.rh.M 5 fhg;gPL go oiuth; cl;gl 3 ngUf;F ftnu cz;L/ Mh;/rp/ g[j;jfj;jpy;
chpkk; kw;Wk; fhg;gPL xU egUf;F kl;Lk; vd;W Fwpg;gplg;gl;oUe;jhYk; k/rh/M 5 fhg;gPL nghd;w tH';f chpik cz;L/”
12. In view of the aforesaid evidence it is clear that the vehicle involved in the accident bearing Reg.No. TN21F 1033 had a ___ 8/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3312 of 2009 valid insurance policy covering the deceased Muniandi. Therefore the contention raised by the learned counsel appearing for the appellant denying the validity of the insurance policy cannot be accepted and the same is liable to be rejected.
13. Considering the facts and circumstances and also considering the fact that there no materials to disprove the validity of the insurance policy, this Court with no hesitation concur the findings of the tribunal in respect of fixing the liability on the part of the appellant/insurance company.
14. Insofar as quantum of compensation is concerned, the tribunal has rightly considered all the aspects in respect of fatal accident and awarded a compensation of Rs.4,30,000/- together with interest at 7.5% per annum by applying proper multiplier method. This Court finds no reason to interfere with the compensation awarded by the Tribunal, accordingly, the same is confirmed.
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15. In the result, this Civil Miscellaneous Appeal is dismissed and the compensation awarded by the Tribunal at Rs.4,30,000/- together with interest at the rate of 7.5% per annum is confirmed. The appellant-Insurance Company is directed to deposit the award amount along with interest and costs, less the amount already deposited, within a period of twelve weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.294 of 2005. On such deposit, the respondents 1 to 4/claimants are permitted to withdraw the award amount, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. Consequently, connected Miscellaneous Petition is closed. No costs.
04.01.2021 Index : Yes ak ___ 10/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.3312 of 2009 D.KRISHNAKUMAR, J.
ak To
1.The Subordinate Judge, Kancheepuram.
2.The Section Officer, V.R Section, High Court, Madras.
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