C.M.A.No.24 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.24 of 2021
and
C.M.P.No.222 of 2021
The Manager,
M/s. IFFCO – TOKIO General Insurance
Company Limited,
No.28/195, North Usman Road,
T – Nagar,
Chennai – 600 017. .. Appellant
Vs.
1.Loganayagi
2.Minor. Boopesh
3.Minor. Harini
(Minor respondents 2 & 3 are represented
by their Mother / Guardian, Loganayagi,
1st respondent herein)
4.Pathipooranam
5.E.Senthamarai .. Respondents
https://www.mhc.tn.gov.in/judis
1/12
C.M.A.No.24 of 2021
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
29.11.2019, made in M.C.O.P.No.298 of 2013, on the file of the Motor
Accident Claims Tribunal, Additional District Court - Fast Track Court,
Kanchipuram.
For Appellant : Mr.J.Michael Visuvasam
For RR 1 to 4 : Mr.K.Suryanarayanan
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.) This Civil Miscellaneous Appeal has been filed by the appellant / Insurance Company against the judgment and decree dated 29.11.2019, made in M.C.O.P.No.298 of 2013, on the file of the Motor Accident Claims Tribunal, Additional District Court - Fast Track Court, Kanchipuram.
2.The appellant is the 2nd respondent in M.C.O.P.No.298 of 2013, on the file of the Motor Accident Claims Tribunal, Additional District Court - Fast Track Court, Kanchipuram. The respondents 1 to 4 / claimants filed the said claim petition, claiming a sum of Rs.10,00,000/- https://www.mhc.tn.gov.in/judis 2/12 C.M.A.No.24 of 2021 as compensation for the death of one Kamalakannan, who died in the accident that took place on 04.04.2013.
3.According to the respondents 1 to 4, on 04.04.2013 at about 08.30 p.m., while the deceased Kamalakannan was proceeding in the motorcycle bearing Registration No.TN 21 AB 1396 from Kilambi to Kanchipuram, near Fashion Company at Magamedu, Kilambi Village, the rider of the motorcycle bearing Registration No.TN 21 M 4852 belonging to 5th respondent, who was riding the motorcycle behind the motorcycle driven by the said Kamalakannan, drove the same in a rash and negligent manner and dashed on the backside of the motorcycle driven by the said Kamalakannan and caused the accident. In the accident, the said Kamalakannan sustained grievous injuries and died in the Kanchipuram Government Hospital on the same day. Hence, the respondents 1 to 4 filed the said claim petition claiming compensation against the 5th respondent and appellant, being the owner and insurer of the motorcycle bearing Registration No.TN 21 M 4852 respectively.
4.The 5th respondent - owner of the motorcycle motorcycle bearing Registration No.TN 21 M 4852 remained exparte before the Tribunal. https://www.mhc.tn.gov.in/judis 3/12 C.M.A.No.24 of 2021
5.The appellant-Insurance Company filed counter statement and denied all the averments made by the respondents 1 to 4 in the claim petition. According to appellant, the allegations stated in the claim petition are false and are invented only for the purpose of claiming compensation from the appellant. As per FIR, it is very clear that the 5th respondent's motorcycle was set up in this case for the purpose of claiming compensation from the appellant. The deceased Kamalakannan only drove the motorcycle in a rash and negligent manner and dashed against the unknown vehicle and thereafter a false case was set up as if the 5th respondent dashed on the backside of the motorcycle driven by the deceased. There was contributory negligence on the part of the deceased. At the time of accident, the rider of the motorcycle belonging to 5 th respondent was not having driving license to ride the motorcycle and the motorcycle belonging to 5th respondent was not having any insurance coverage with the appellant. Hence, the appellant is not liable to pay any compensation to the respondents 1 to 4. The respondents 1 to 4 have to prove that they are the legal heirs of the deceased. The appellant denied the age, avocation and income of the deceased. In any event, the quantum of compensation claimed by the respondents 1 to 4 is highly excessive and prayed for dismissal of the claim petition as against the appellant. https://www.mhc.tn.gov.in/judis 4/12 C.M.A.No.24 of 2021
6.Before the Tribunal, the 1st respondent examined herself as P.W.1, one Murali, eyewitness to the accident was examined as P.W.2 and one Meenakumari, Secretary of the Kilambi Village Co-operative Town Bank Limited was examined as P.W.3 and 14 documents were marked as Exs.P1 to P14. The appellant examined one Muthu, Sub Inspector of Police, Baluchetty Chatram as R.W.1, one Haridoss, Investigation Officer of the appellant as R.W.2 and Dr.Abinandaraju, Assistant Surgeon, Kancheepuram Government Hospital as R.W.3 and marked 4 documents as Exs.R1 to R4.
7.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the rider of the motorcycle belonging to 5th respondent and directed the appellant-Insurance Company to pay a sum of Rs.17,98,000/- as compensation to the respondents 1 to 4.
8.To set aside the said award dated 29.11.2019, made in M.C.O.P.No.298 of 2013, the appellant has come out with the present appeal.
https://www.mhc.tn.gov.in/judis 5/12 C.M.A.No.24 of 2021
9.The learned counsel appearing for the appellant-Insurance Company contended that the Tribunal failed to consider that FIR was registered 12 hours after the alleged accident. There is no document to show that the rider of the motorcycle belonging to 5 th respondent was arrested to support Ex.P14 / Remand Report. The vehicle number of the 5th respondent was inserted in Ex.R1 / Accident Register Extract. The damages caused to the vehicle of the deceased as per the Motor Vehicle Inspector's Report does not support the claim of the respondents 1 to 4 that accident occurred when the vehicle of the 5th respondent dashed on the backside of the motorcycle driven by the deceased. The Tribunal failed to appreciate the fact that the case remained undetected till the date of final award. The motorcycle belonging to 5th respondent was not involved in the accident. The deceased who was under the influence of alcohol, fell down from the motorcycle and got injured. The Tribunal erred in fixing the entire negligence negligence on the rider of the motorcycle belonging to 5th respondent. The Tribunal ought to have fixed contributory negligence on the deceased who drove the motorcycle under the influence of alcohol. In view of the above, the award of the Tribunal fixing the liability on the appellant is erroneous and prayed for setting aside the award of the Tribunal.
https://www.mhc.tn.gov.in/judis 6/12 C.M.A.No.24 of 2021
10.The learned counsel appearing for the respondents 1 to 4 made his submissions in support of the award passed by the Tribunal and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant – Insurance Company as well as the learned counsel appearing for the respondents 1 to 4 and perused the entire materials on record.
12.From the materials on record, it is seen that it is the case of the respondents 1 to 4 that on the date of accident, while the deceased Kamalakannan was proceeding in the motorcycle bearing Registration No.TN 21 AB 1396 from Kilambi to Kanchipuram, near Fashion Company at Magamedu, the rider of the motorcycle bearing Registration No.TN 21 M 4852 belonging to 5th respondent, who was riding the motorcycle behind the motorcycle driven by the said Kamalakannan, drove the same in a rash and negligent manner and dashed on the backside of the motorcycle driven by the said Kamalakannan and caused the accident. Due to the injuries sustained in the accident, the said Kamalakannan died. To substantiate their case, the 1st respondent examined herself as P.W.1 and one Murali, eyewitness to the accident https://www.mhc.tn.gov.in/judis 7/12 C.M.A.No.24 of 2021 was examined as P.W.2. Further, the respondents 1 to 4 also marked the FIR as Ex.P1, which was registered against the rider of the motorcycle bearing Registration No.TN 21 M 4852 belonging to 5 th respondent and also filed Ex.P14 / Remand Report. P.W.2 deposed that the accident occurred only due to the rash and negligent driving by the rider of the motorcycle bearing Registration No.TN 21 M 4852 belonging to 5th respondent.
12(i). On the other hand, it is the case of the appellant in the counter statement that the vehicle belonging to 5th respondent was not involved in the accident and the respondents 1 to 4 in collusion with 5th respondent made false claim against the 5th respondent and appellant. The appellant examined the Sub Inspector of Police, Baluchetty Chatram as R.W.1. R.W.1 based on the records deposed that FIR was registered against the rider of the motorcycle bearing Registration No.TN 21 M 4852 belonging to 5th respondent and the rider of the motorcycle bearing Registration No.TN 21 M 4852 was arrested and remanded. The appellant also contended that the vehicle No.TN 21 M 4852 of the 5 th respondent's motorcycle was inserted in the Accident Register Extract. To substantiate their contention, they examined Dr.Abinandaraju, Assistant https://www.mhc.tn.gov.in/judis 8/12 C.M.A.No.24 of 2021 Surgeon, Kancheepuram Government Hospital as R.W.3. R.W.3 deposed that vehicle No.TN 21 M 4852 was mentioned in the side of the Report. The appellant has not proved that there is insertion of the vehicle number in the Accident Register Extract. The appellant has also not examined the Doctor who recorded the statement in the Accident Register Extract and also not examined any witness to prove that deceased dashed on some other vehicle and got injured. In the grounds of appeal, the appellant has taken a different stand that deceased who was under the influence of alcohol, fell down from the motorcycle and got injured. On the other hand, R.W.3, who was examined on behalf of the appellant, deposed that deceased was brought in an unconscious state and there was no alcohol smell. The Tribunal considering the evidence of P.W.1, P.W.2, Ex.P1 / FIR, Ex.P14 / Remand Report, evidence of R.W.3, held that accident occurred only due to rash and negligent driving by the rider of the motorcycle belonging to 5th respondent. The Tribunal also held that the rider of the 5th respondent contributed to the accident.
12(ii). The contention of the learned counsel appearing for the appellant that the Tribunal erred in fixing the entire liability on the appellant, after holding that rider of the motorcycle belonging to 5th https://www.mhc.tn.gov.in/judis 9/12 C.M.A.No.24 of 2021 respondent contributed negligence is concerned, a reading of the award in its entirety, makes it clear that the Tribunal has held that accident has occurred only due to rash and negligent driving by the rider of the motorcycle belonging to 5th respondent and fixed entire negligence on the part of the rider of the motorcycle belonging to 5th respondent. There is no error in the said finding of the Tribunal warranting interference by this Court.
13.In the result, this Civil Miscellaneous Appeal is dismissed and a sum of Rs.17,98,000/- awarded by the Tribunal as compensation to the respondents 1 to 4, along with interest and costs is confirmed. The appellant-Insurance Company is directed to deposit the award amount along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.298 of 2013, on the file of the Motor Accident Claims Tribunal, Additional District Court - Fast Track Court, Kanchipuram. On such deposit, the respondents 1 & 4 are permitted to withdraw their respective share of the award amount as per the ratio of apportionment fixed by the Tribunal, along with https://www.mhc.tn.gov.in/judis 10/12 C.M.A.No.24 of 2021 proportionate interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The share of the minor respondents 2 & 3 are directed to be deposited in any one of the Nationalized Banks, till the minor respondents 2 & 3 attain majority. On such deposit, the 1st respondent, being the Mother of the minor respondents 2 & 3 is permitted to withdraw the accrued interest once in three months for the welfare the minor respondents 2 & 3. Consequently the connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (T.V.T.S., J)
12.09.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The Additional District Judge,
Motor Accidents Claims Tribunal,
Fast Track Court,
Kancheepuram.
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis
11/12
C.M.A.No.24 of 2021
V.M.VELUMANI, J.
and
T.V.THAMILSELVI, J.
krk
C.M.A.No.24 of 2021
12.09.2022
https://www.mhc.tn.gov.in/judis
12/12