Madras High Court
The New India Assurance Co.Ltd vs S.Rani on 26 April, 2021
C.M.A.No.596 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.No.596 of 2011
and
MP.No.1 of 2011
The New India Assurance Co.Ltd.,
145, Moore Street, Chennai-01 ... Appellant
Versus
1.S.Rani
2.A.Kumar ... Respondents
Prayer:
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree made in MACTOP.No.5717
of 2005 on the file of the Motor Accidents Claims Tribunal (Chief Judge,
Court of Small Causes) at Chennai dated 30.08.2010.
For Appellant : Mr.M.Krishnamoorthy
For Respondents : No Appearance
Page 1 of 8
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C.M.A.No.596 of 2011
JUDGMENT
This appeal has been laid as against the judgment and decree made in
MACTOP.No.5717 of 2005 on the file of the Motor Accidents Claims
Tribunal (Chief Judge, Court of Small Causes) at Chennai dated 30.08.2010,
thereby awarded the compensation to the tune of Rs.3,50,000/-.
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status before the Tribunal.
3. The case of the claimants is that the deceased was riding the
motor cycle as pillion rider. The rider of the vehicle one, Sekar was driving
the motor cycle in a rash and negligent manner. While being so, one bullock
cart suddenly crossed east coast road and due to which the rider of the motor
cycle could not control his motor cycle and hit a tree which is located on the
left hand side of the road, thereby the pillion rider of the motor cycle
sustained grievous injuries and died. Therefore, the claimants filed claim
petition seeking compensation at Rs.7,00,000/-.
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C.M.A.No.596 of 2011
4. Resisting the same, the second respondent filed counter stating
that the deceased only rode the motor cycle and he himself hit the tree and
sustained grievous injuries and died. The insurance policy was taken by the
first respondent for two wheeler only and it is act only policy and it covers
only third parties and owner cum driver of the motor cycle. The deceased is
being pillion rider of the vehicle he is a tort feaser and insurer i.e. the
second respondent is not at all held to be liable to pay any compensation
and sought for dismissal of the claim petition.
5. On the side of the claimants, they examined P.W.1 to P.W.3 and
marked Ex.P.1 to Ex.P.10. On the side of the respondents they examined
R.W.1 and marked Ex.R.1 to Ex.R.3. On the basis of the evidence available
on records and also considering the submission made by the learned counsel
appearing on either side, the Tribunal fixed liability on the second
respondent and awarded a sum of Rs.3,50,000/- as compensation payable by
the respondents 1 and 2 jointly and severally with interest at the rate of
7.5%. Aggrieved by the same, the second respondent has filed the present
appeal.
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C.M.A.No.596 of 2011
6. The learned counsel for the appellants would submit that the
investigation report is marked as Ex.R2, and it categorically revealed that
the deceased only rode the motor cycle and he himself hit the tree, due to
which he sustained injuries and died. The father of the deceased lodged
complaint i.e. the second petitioner therein / claimant alleging that the rider
of the motor cycle drove the motor cycle in a rash and negligent manner and
hit the tree due to which the pillion rider i.e. the deceased sustained
grievous injuries and died. The investigation done by the second respondent
revealed that the deceased only rode the motorcycle and due to his rash and
negligent driving, the accident took place. Due to which, he sustained
grievous injuries and died. The Police registered FIR in Cr.No.386 of 2005
for the offences under Sections 277, 337 and 304(a) of IPC as against the
rider of the motor cycle. Since one, Raja who is the deceased in the present
case rode the motor cycle and died, therefore, the entire charges were abated
as against the rider of the motor cycle. He further submitted that even
assuming that the deceased is a pillion rider, he is not entitled for any
compensation since the policy which is marked as Ex.R3 on the side of the
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C.M.A.No.596 of 2011
second respondent and marked as Ex.P7 on the side of the claimants meant
act only policy and it does not cover pillion rider of the vehicle. The
deceased being rider of the motor cycle, the rider of the motor cycle is not
also entitled for compensation since policy covers under compulsory
personal accident to owner cum driver. Admittedly, the rider of the motor
cycle is not the owner of the two wheeler and the first respondent is the
owner of the vehicle. Without even considering the same, the Tribunal fixed
the entire liability on the vehicle owned by the first respondent and awarded
compensation payable by both the respondents.
7. Though notice was served and the counsel also entered
appearance, no one appeared on behalf of the first respondent today.
8. Heard, Mr.M.Krishnamoorthy, the learned counsel for the
appellants.
9. On perusal of the investigation report which is marked as
Ex.R2, revealed that one, Raja, the rider of the motor cycle drove the motor
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C.M.A.No.596 of 2011
cycle in a rash and negligent manner and hit the tree. Therefore, he died on
the spot and the pillion rider one, Sekar sustained grievous injuries. The
claimants filed the present claim petition on the death of the said Raja, who
is none other than their son. The insurance policy is marked as Ex.R3 and it
revealed that the policy does not cover the pillion rider of the motor cycle
and it is only act only policy. The personal accident also covers the owner
cum driver of the motor cycle. Admittedly, the rider of the motorcycle is not
the owner of the motor cycle which is owned by the first respondent. Even
assuming that the deceased either driver of the motor cycle or pillion rider
of the motor cycle, he is not entitled for any compensation. Therefore, the
second respondent is not held to be liable to pay any compensation as
awarded by the Tribunal.
10. In view of the above, this civil miscellaneous appeal is allowed
and the order passed in MACTOP.No.5717 of 2005 on the file of the Motor
Accidents Claims Tribunal (Chief Judge, Court of Small Causes) at Chennai
dated 30.08.2010 is set aside. Consequently, connected miscellaneous
petition is closed. No costs. The second respondent / appellant is not held to
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C.M.A.No.596 of 2011
be liable for any compensation. Further the deceased is being tort feaser, the
first respondent / second petitioner herein is also not held to be liable to pay
compensation. The amount already deposited by the second respondent /
appellant before the Tribunal is permitted to be withdrawn with accrued
interest, if any.
26.04.2021
Index:Yes/No
Internet: Yes/no
Speaking/Non-speaking Order
lok
https://www.mhc.tn.gov.in/judis/
C.M.A.No.596 of 2011
G.K.ILANTHIRAIYAN, J.
lok
To
1. The Chief Judge, Court of Small Causes,
The Motor Accidents Claims Tribunal, Chennai
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
C.M.A.No.596 of 2011
26.04.2021
https://www.mhc.tn.gov.in/judis/
