Madras High Court
Cholamandalam Ms General ... vs A.Backiyam on 21 April, 2021
C.M.A(MD)NOs.224 and 225 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)NOs.224 and 225 of 2009
and
M.P(MD)Nos.1 and 1 of 2009
C.M.A(MD)NO.224 of 2009
Cholamandalam MS General Insurance Company Limited,
represented by its Divisional Manager,
II Floor, Alankar Building,
551, D.B.Road,R.S.Puram,
Coimbatore – 641 001. :Appellant/Second Respondent
.vs.
1.A.Backiyam
2.Minor A.Krishnan :Respondents/Petitioners
3.A.Thulkaruni Sikkandar
4.M.Suresh Kannan :Respondents/Respondents
1 to 3
C.M.A(MD)NO.225 of 2009
Cholamandalam MS General Insurance Company Limited,
represented by its Divisional Manager,
II Floor, Alankar Building,
551, D.B.Road,R.S.Puram,
Coimbatore – 641 001. :Appellant/Second Respondent
.vs.
1.Chinnappan :Respondent/Petitioner
2.A.Thulkaruni Sikkandar
3.M.Suresh Kannan :Respondents/Respondents
1&3
https://www.mhc.tn.gov.in/judis/
C.M.A(MD)NOs.224 and 225 of 2009
COMMON PRAYER: Civil Miscellaneous Appeals filed under
Section 173 of the Motor Vehicles Act praying this Court to set
aside the fair and decretal orders made in M.C.O.P.Nos.153 and
156 of 2004, dated 18.08.2008, on the file of the Motor Accidents
Claims Tribunal(District Judge), Sivagangai.
C.M.A(MD)NO.224 of 2009
For Appellant :Mr.S.Srinivasaraghavan
For Respondents :Mr.P.Athimoolapandian
1 and 2
For Respondent-3 :Mr.V.George Raja
For Respondent-4 :No appearance
C.M.A(MD)NO.225 of 2009
For Appellant :Mr.S.Srinivasaraghavan
For Respondent-1 :Mr.P.Athimoolapandian
For Respondent-2 :Mr.V.George Raja
For Respondent-3 :No appearance
COMMON JUDGMENT
***********************
These Civil Miscellaneous Appeals arise out of the common
order passed in M.C.O.P.Nos.153 and 156 of 2004, dated
18.08.2008, on the file of the Motor Accidents Claims
Tribunal(District Judge), Sivagangai.
https://www.mhc.tn.gov.in/judis/
C.M.A(MD)NOs.224 and 225 of 2009
2.M.C.O.P.No.153 of 2004 was filed by the wife and minor
son of the deceased Arumugam. They claimed compensation of Rs.4
lakhs for the death of the said Arumugam in a road accident.
M.C.O.P.No.156 of 2004 was filed by the injured claimant
Chinnappan, who sustained injury in a road accident that had taken
place on 20.09.2003. He sought compensation of Rs.1,00,000/-.
3.It is the case of the claimants that the deceased Arumugam
and the injured Chinnappan travelled in a Bajaj Mini Door Van
bearing Registration No. TN 63C 8393 belonging to the first
respondent and insured with the appellant/Insurance Company. It is
alleged that the driver of the vehicle drove it in a rash and
negligent manner at Sivagangai Manamadurai Main Road and
when the vehicle was proceeding near Keelavaniyangudi, the van
bearing Registration No. TN 63 B 6385 owned by the third
respondent came in a high speed and rammed the mini door van.
In the accident, the said Arumugam died on the spot, while the
said Chinnappan sustained injuries.
4.A counter affidavit has been filed by the appellant disputing
and denying the averments made in the claim petitions. It is
specifically stated that both the deceased Arumugam as well as the
injured Chinnappan travelled as a gratuitous passenger in the
https://www.mhc.tn.gov.in/judis/
C.M.A(MD)NOs.224 and 225 of 2009
goods vehicle and hence no liability can be mulcted on the
Insurance Company. The first respondent in the claim petitions is
the owner of the mini door van and the third respondent was the
owner of the opposite vehicle.
5.Before the Tribunal, on behalf of the claimants three
witnesses were examined and 11 documents were marked. The
appellant examined three witnesses and marked three documents.
6.On appreciation of evidence adduced by the parties, the
Tribunal held that the drivers of both the vehicles are equally
responsible for the accident and fixed the negligence at the ratio
of 50:50. It was further held that the deceased as well as the
injured claimant travelled as owner of the goods and hence the
Insurance Company is liable to pay the compensation. Rs.66,000/-
was awarded in the case of injured claimant Chinnappan and Rs.
2,22,000/- was awarded in the case of fatal accident. Questioning
the same, the present Civil Miscellaneous Appeals have been filed.
7.It is contended by Mr.S.Srinivasa Raghavan, learned
counsel for the appellant-Insurance Company that the Tribunal
had failed to appreciate the evidence in a proper perspective and
the finding of the Tribunal that the deceased and the injured are
https://www.mhc.tn.gov.in/judis/
C.M.A(MD)NOs.224 and 225 of 2009
the owner of the goods is contrary to the evidence available on
record. It is the submission of the learned counsel for the appellant
that Ex.P1/First Information Report came to be registered based on
the complaint given by one Kathirvel Raja. In the complaint, he has
categorically stated that the deceased Arumugam and the injured
Chinnappan travelled in the vehicle as gratuitous passengers and
they want to get down at Mangudi and Kidapuri, however to make
false claims against the Insurance Company, it has been stated in
the claim petitions that they are the owners of the goods. Hence
the liability of the appellant has to be exonerated and the finding of
the Tribunal is to be set aside.
8.Per contra, Mr.V.George Raja, learned counsel appearing
for the owner and Mr.P.Athimoolapandian, learned counsel for the
claimants has urged that the First Information Report was
registered on the basis of the complaint of one Kathirvel Raja, but
before the tribunal, it has been proved that the deceased as well
as the injured travelled in the vehicle as owners of the goods. The
learned counsels drew the attention of this Court to the evidence
of P.W.2, wherein, it has been stated that the claimant Chinnappan
travelled as the owner of the goods. According to the learned
counsels, the finding has been reached based on the evidence and
hence no interference is necessary.
https://www.mhc.tn.gov.in/judis/
C.M.A(MD)NOs.224 and 225 of 2009
9.Heard the rival submissions made on either side and
perused the materials available on record.
10.It is not in dispute that the first respondent in the claim
Petition A.Thulakaruni Sikkandar is the owner of the mini door auto
TN 63 C 8393. It is also not disputed that the vehicle was insured
with the appellant at the relevant point of time Ex.P1 shows that
there was a head on collision between the goods auto TN 63C
8393 and the van bearing Registration No. TN 63 B 6385. At that
time, the deceased Arumugam and the injured Chinnappan
admittedly travelled in the goods auto. The Tribunal, on proper
appreciation of the evidence, held that both the driver of the
vehicle are equally responsible for the accident. Hence no
interference in the finding is required in this matter. There is no
dispute with regard to quantum.
11.Insofar as the liability is concerned, the statement of
Kathirvel Raja in the First Information Report would reveal that he
was a load-man in the mini door auto and the vehicle is proceeding
from Sivagangai to Kidapuri. When the vehicle was proceeding, the
deceased Arumugam and the injured claimant Chinnappan got
into the vehicle to get down at Mangudi and Kidapuri. But in the
https://www.mhc.tn.gov.in/judis/
C.M.A(MD)NOs.224 and 225 of 2009
claim petitions, the legal heirs of the deceased Arumugam have
pleaded that the deceased was the owner of the goods. However, in
support of the statement, no materials are produced. R.W.2,
Investigating Officer appointed by the appellant deposed in the
Chief Examination itself that the injured claimant Chinnappan
travelled as owner of the goods. Though at a later point time, he
has stated that the injured claimant Chinnappan and the deceased
Arumugam were gratuitous passengers, since he has already
admitted that the said Chinnappan is the owner of the goods, the
subsequent statement cannot be countenanced.
12. In the claim petition in M.C.O.P.No.156 of 2004 and in the
evidence, the said Chinnappan had categorically stated that he
purchased Cement bags near Government Hospital at the rate of
Rs.750/- per bag and he travelled in the vehicle along with cenment
bags to Kidapuri. In view of the categorical evidence of P.W.2, I am
of the view that the finding of the Tribunal that Chinnappan was
the owner of the goods has to be confirmed. It is further seen from
the evidence of P..W.2 and other witnesses that the deceased
Arumugam did not travel as the owner of the goods. As already
pointed out, no other materials are produced by the wife and minor
son of the deceased Arumugam to establish that he was the owner
of the goods at the relevant time.
https://www.mhc.tn.gov.in/judis/
C.M.A(MD)NOs.224 and 225 of 2009
13.Hence while confirming the quantum, the liability of the
appellant, in respect of M.C.O.P.No. 153 of 2004 is set aside.
Accordingly, the Civil Miscellaneous Appeal in C.M.A(MD)No.224 of
2009 is allowed. The Tribunal is directed to refund 50% of the
award amount to the appellant, if already deposited and lying to
the credit of the claim petition. The claimants shall recover the
award amount from the owner of the vehicle by following due
process of law.
14. In the light of the above finding, the Civil Miscellaneous
Appeal in C.M.A(MD)No.225 of 2009 fails and the same is
dismissed. The appellant and owner of the vehicle are directed to
deposit their share of 50% of the award amount along with
proportionate accrued interest and costs, less the award amount
already deposited if any, within a period of eight weeks from the
date of receipt of a copy of this order. On such deposit being made,
the claimant is permitted to withdraw the said award amount by
filing necessary application before the Tribunal. Consequently,
connected Miscellaneous Petitions are closed. No costs.
21.04.2021
Index:Yes/No
Internet:Yes/No
vsn
https://www.mhc.tn.gov.in/judis/
C.M.A(MD)NOs.224 and 225 of 2009
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate / litigant concerned.
To
1.The District Judge,
(The Motor Accidents Claims Tribunal) ,
Sivagangai..
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
C.M.A(MD)NOs.224 and 225 of 2009
K.KALYANASUNDARAM, J.
vsn
COMMON JUDGMENT MADE IN
C.M.A(MD)NOs.224 and 225 of 2009
and
M.P(MD)Nos.1 and 1 of 2009
21.04.2021
https://www.mhc.tn.gov.in/judis/
