CMA No.2507 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.04.2022
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
C.M.A.No.2507 of 2018
and
C.M.P.No.19147 of 2018
The New India Assurance Co.Ltd.,
482-483, 3rd Floor,
N.V.Chamber Building,
Near Power House Bus Stop,
Cross cut Road, Gandhipuram,
Coimbatore – 641 012 ... Appellant
Vs.
1.Balamani
2.Minor Kavipriya
3.Minor Gopika
Minors 2 and 3 rep.by next friend
Mother Balamani
4.Nachammal
5.Govindaraj ... Respondents
Prayer: This Civil Miscellaneous Appeal has been filed under Section 173
of the Motor Vehicles Act, 1988, against the award and decree dated
08.06.2018 passed in M.C.O.P.No.725 of 2013, on the file of the Motor
Accident Claims Tribunal (Sub Judge), Dharapuram.
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https://www.mhc.tn.gov.in/judis
CMA No.2507 of 2018
For Appellant : Mr.R.Sivakumar
For Respondent : Mr.N.Ponraj
Nos.1 & 2
Respondent No.5 : Exparte
JUDGMENT
The second defendant/Insurance Company in MCOP.No.725 of 2013 on the file of the Motor Accident Claims Tribunal is the appellant herein. They are aggrieved by the grant of compensation for the death of Kalliyappan @ Kallimuthu, who unfortunately died in a Motor Vehicle Accident on 03.03.2013. The appellant herein deny their liability to pay compensation and it was urged during the course of hearing of this appeal that the Tribunal had directed the appellant to pay the compensation, though the tribunal had found that the accident was caused only owing to the negligence of Kalliyappan @ Kallimuthu, who was driving the motor vehicle.
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2.A further examination of the facts reveal that on 03.03.2013, at around 7.45 p.m., when Kalliyappan @ Kallimuthu was driving a motorcycle bearing registration No.TN-37-L-7452 from Pongalur to Thumpalapatti, a bicycle was said to have crossed the road, which necessitated Kalliyappan @ Kallimuthu to apply the brakes, owing to which, the motorcycle capsized and he fell down and owing to the injuries, died on the spot. Claiming compensation for the said accident, the claim petition has been filed.
3.During the course of trial before the Tribunal, the first claimant Balamani examined herself as PW1 and Balu @ Balasubramaniam, an eye witness to the accident was examined as PW2. They also marked 14 documents as Exs.P1 to P14. Ex.P9 is the copy of the Insurance Policy and Ex.P1 is the copy of the First Information Report.
4.On considering the documentary and oral evidence presented before it, the Tribunal first examined as issue No.1, as to the manner in which the 3/8 https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018 accident occurred.
5.In that connection, the Tribunal had to necessarily consider the Final Report filed by the police pursuant wherein, it had been held that the accident occurred only due to the negligent driving of Kalliyappan @ Kallimuthu. The exact words of the Tribunal in this connection are as follows:
“,t;thW k/rh/M/6 kw;Wk; v/k/rh/M/1 Mfpatw;iw ghh;f;Fk;nghJ. tpgj;jhdJ ,we;Jnghd eghpd; ftdf;Fiwthy; Vw;gl;Ls;sJ vd;gJ epU:gzkhfpwJ/ vdnt tpgj;jpw;F ,we;J nghd egnu fhuzk; vd;W 1tJ gpur;ridf;F ,j;jPh;g;ghak; tpil fhz;fpwJ/”
6.A specific finding had been given by the Tribunal that the accident had occurred only due to the negligence of the deceased Kalliyappan @ Kallimuthu.
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7.Thereafter, the Tribunal went on to proceed to determine the compensation to be paid and more importantly as to who has to pay the compensation. It must be pointed out that in the claim petition, the occupation of Kalliyappan @ Kallimuthu was stated as Business and Agriculture and with respect to the name and address of the employer, a declaration was given that he was self employed. However, when the claim petition was presented before the Tribunal duly verified by the claimant that the facts stated or true, the Tribunal, for reasons best known, had taken a tangential direction and proceeded to observe that Kalliyappan @ Kallimuthu was employed under the first respondent/owner of the motorcycle and on that basis, placed vicarious obligation on the insurance company/insurer of the motocycle to pay compensation. This aspect is questioned very seriously by Mr.Sivakumar, learned counsel for the appellant, who stated that such a conclusion can never be arrived at since there was no basis. The first respondent/ owner of the motorcycle had not been examined as a witness to state that Kalliyappan @ Kallimuthu was employed under him. If there was a relationship of employer and employee 5/8 https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018 and the employee had suffered an accident during the course of employment, then the compensation would be under the Workmens Compensation Act and approaching the Motor Accident Claims Tribunal on the basis that the deceased was self employed and doing agricultural business cannot be a true version.
8.I hold that the Tribunal had misdirected itself to hold that the insurance company was liable to pay the compensation to be awarded. The said finding has to be interfered with.
9.In view of that fact, the issue of actual compensation to be granted cannot be now examined by this Court. The finding of the Tribunal that the deceased was working under the first respondent is specifically set aside. The finding is also per se perverse and opposed to the evidence available. The insurance company has now been forced to file this appeal and litigate before this Court. Therefore, the present appeal is allowed and the judgment of the tribunal dated 08.06.2018 is set aside. No costs. Consequently, connected miscellaneous petition is closed. 6/8 https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018 If any deposit had been made at the time of admission of the appeal, then the appellant is directed to withdraw the same along with accrued interest.
Index:Yes/No
Internet:Yes/No
sms 01.04.2022
To
1.The Motor Accident Claims Tribunal (Sub Judge), Dharapuram.
2.The New India Assurance Co.Ltd., 482-483, 3rd Floor, N.V.Chamber Building, Near Power House Bus Stop, Cross cut Road, Gandhipuram, Coimbatore – 641 012.
7/8 https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018 C.V.KARTHIKEYAN,J sms C.M.A.No.2507 of 2018 and C.M.P.No.19147 of 2018 01.04.2022 8/8 https://www.mhc.tn.gov.in/judis