Chandrappa vs Dr.P.S.Prabakaran
2021 Latest Caselaw 10959 Mad

                                                                      C.M.A.Nos.4778, 4781 & 4801 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 29.04.2021

                                                         CORAM

                                     THE HON'BLE MR.JUSTICE C.SARAVANAN

                                         C.M.A.Nos.4778, 4781 & 4801 of 2019

                     1.Chandrappa                         ... Appellant in C.M.A.No.4778 of 2019
                     2.Govindaraj                         ... Appellant in C.M.A.No.4781 of 2019
                     3.Madesh                              ... Appellant in C.M.A.No.4801 of 2019

                                                           Vs.

                     1.Dr.P.S.Prabakaran,
                       Son of late.P.Subramaniam,
                       558, 15th Cross, 16th main, 4th Sector,
                       HSR Layout, Bangalore, Karnataka.

                     2.The Divisional Manager,
                       National Insurance Co Ltd,
                       Ist Floor, Saradamma Building,
                       Bye Pass Road, Hosur,
                       Krishnagiri District.                        ... Respondents in all C.M.As

Prayer in C.M.A.No.4778 of 2019:-Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and Decree dated 07.07.2017 made in M.C.O.P.No.247 of 2012, on the file of the Motor Accidents Claims Tribunal/Sub Court, Hosur, Krishnagiri District.

Prayer in C.M.A.No.4781 of 2019:-Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and Decree dated 07.07.2017 made in M.C.O.P.No.85 of 2015, on the file of the Motor Accidents Claims Tribunal/Sub Court, Hosur, Krishnagiri District.

https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

Prayer in C.M.A.No.4801 of 2019:-Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Judgment and Decree dated 07.07.2017 made in M.C.O.P.No.246 of 2014, on the file of the Motor Accidents Claims Tribunal/Sub Court, Hosur, Krishnagiri District.

                                      For Appellants    : Mr.PA.Sudesh Kumar
                                      (in all C.M.As)
                                      For Respondents : Mrs.Surekha for R2
                                      (in all C.M.As)     No appearance for R1

                                                 COMMON JUDGMENT

The claimants are the appellants in the respective Appeal, they filed

these appeals against the impugned Judgments and decree dated 07.07.2014

in MCOP Nos.246 & 247 of 2014 and MCOP No.85 of 2015.

2.By the impugned Judgment and decree the Tribunal has rejected the

claim petitions filed by the appellant herein on the ground that the rider of

the applicant by the appellant in CMA Nos.4778 of 2019 (O.P.No.247 of

2014) drove the motorcycle without wearing helmet and did not possess

licence and that there were no eye witnesses to the accident.

2A.Paragraphs 9 and 10 of the impugned Judgment reads as under:

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https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

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C.M.A.Nos.4778, 4781 & 4801 of 2019

3.The learned counsel for the appellant submit that the Tribunal had

wrongly rejected the application by holding that the appellant were the

responsible for the accident. It is submitted that the accident was only due to

negligence of the insured Innova Car when the driver of said car suddenly

applied break without giving adequate signal as a result of which, the

motorcycle in which the claimant were traveling hit the rear side of the

insured Innova Car.

4.Defending the impugned Judgment and decree, the learned counsel

for the 2nd respondent/Insurance Company submitted that the impugned

Judgment and decree were reasoned. She submits that since the claim

petitions were filed under Section 166 of the Motor Vehicles Act, 1988, it

was incumbent on the part of the respective claimants/appellants to

discharge the burden of proof regardingly the negligence of the driver of the

insured Innova Car. She would submit that no complaint has also been filed

against the driver of the insured Innova Car. On the other hand she submits

that FIR was against the driver of the motorcycle. She also submits that the

Tribunal has considered all the relevant facts before coming to the fair

conclusion and finding that no case was made out of awarding any

https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

compensation as the rider of the motorcycle was negligent and therefore the

Tribunal has rightly rejected the claim. She further submitted that the

complaint filed against the rider of the motorcycle also culminated in a

charge sheet being issued against Chandrappa (the rider of the motorcycle)

and the appellant in C.M.A.No.4778 of 2019 filed vide Ex.B2 marked

through the Head constable dated 31.03.2014.

5.It is submitted that no complaint was also filed against the driver of

the insured Innova Car and the damage was caused only on the rear side of

the insured Innova Car which hit behind at the front wheel of the motorcycle

in which they are riding in triples was damaged.

6.The learned counsel for the respondents would also relied on the

decision of the Hon'ble Supreme Court rendered in Nishansingh and others

vs. Collateral Insurance Company Limited reported in CDJ 2018 SCC

469. In this, the learned counsel for the Insurance Company has placed

reliance on Paragraph 11 & 12. He however submitted that the Insurance

Company at best can be made liable under Section 140 of the Motor

Vehicles Act, 1988 and therefore submits that an amount of Rs.25,000/- can

be awarded and the appeal be partly allowed.

https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

7.By way of rejoinder, the learned counsel for the appellant submitted

that merely because three persons were riding on the motorcycle by itself

would not lead to an interfere that they were negligent and therefore caused

the accident. In this connection reference was made to the decision of this

Court in New India Insurance vs. Nagarajan reported in 2007 (2) TNMAC

274. The reference was also made to the recent decision of the Hon'ble

Supreme Court in Mohammed Siddique vs. National Insurance Company

rendered by Justice N.V.Ramana and Justice V.Ramasubramanian on

08.01.2020.

8.The learned counsel for the appellant further submitted that the

burden of proof is on the Insurance Company either to discharge its liability

or to prove contributory negligence. In this connection, the reference was

made to the decision of this Court in Kattabomman Transport Corporation

vs. Vellaiduraichi reported in 2004 (1) CTC 677.

9.Finally, the learned counsel for the appellant referred to another

decision of this Court in Branch Manager, United India Insurance

Company vs. Uma and others reported in 2011 1 TANMAC 136. https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

10.The learned counsel for the appellant would further relied on the

following citations: (i) 2013 ACJ 1253 in Reshma Kumar and others vs.

Madan Mohan and another (ii) 2012 ACJ 1305 (SC) in Surrender Kumar

Arorra and another vs. Dr.Manoj Bisla and others (iii) 2015 ACJ 431 in

New India Assurance Co. Ltd., vs. Selvamani and others (iv) 2014 (1)

CTC 893 (SC) in Lachoo Ram & others vs. Himachal Road Transport

Corporation (v) 2015 ACJ 2630 in United India Insurance Co. Ltd., vs.

Shanthakumar and another.

11.He further submitted that the decision of this Court has been cited

by the appellant has been distinguish with one single word that they are

totally irrelevant to the facts and circumstances.

12.Heard the learned counsel for the appellant and the 2nd

respondent/Insurance Company. I have considered the arguments advanced

by the learned counsel for the appellant and the respondent.

https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

13.The case of the appellant/claimant were travelling in triples on a

motor cycle Innova car bearing registration No.KA04MA9524 came from

behind and applied sudden break slightly a shop to buy water. The

appellants who were on the motor cycle met with an accident by drashing at

the back side of car and got injured. It is submitted that because the sudden

break was applied by the driver of the car the rider of the motor cycle

Chandrappa was unable to apply the break and avoid accident.

14.The Insurance company on the other hand has stated that the

accident was due to the negligence on the part of the rider of the motor cycle

and that not only the FIR was filed against the Ex.P1 FIR was filed against

the rider but also the R2 final report of the police has found the rider of the

motor cycle negligent for causing the accident. It is further submitted that

the claimants were intoxicated and therefore no basis to award any

compensation to that under Section 166 of the Motor Vehicles Act, 1966 as

it is predicated on negligence.

15.I have perused the evidence on record namely the FIR Ex.P1

which has been filed by driver/owner of the vehicle Innova belonging to the https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

1st respondent insurer of the 2nd respondent/Insurance company. In the said

FIR complaint, is against the rider of the motor cycle namely Madesh the

appellant in C.M.A.No.4801 of 2019.

16.The Ex.R2 is the final report/charge sheet. It is merely a closure

report and does not reveal any examination of independent witnesses to

conclude that the rider of the motor cycle was negligent. It has merely

concluded that the rider of the motor cycle was negligent. The three

appellant examined themselves as witnesses. The two witnesses examined

by the 2nd respondent/Insurance Company are the officer of the Insurance

Company and the Inspector of Police namely Chinnaswamy. Thus, the

evidence on P.W.1 to P.W.3 as also R1 has to be considered with caution as

P.W.1 to P.W.3 are themselves the victims whereas R.W.1 is an interested

witness of the 2nd respondent/Insurance Company. R.W.1 is not an eye

witness. Therefore, his statement cannot a evidentially value. As far as

R.W.2 is concerned, during cross examination he is clearly stated that he has

not carried out any investigation and he gave statements during deposition

only based on the available documents.

17.No counter has been filed on behalf of the owner of the insured https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

vehicle Dr.P.S.Prabhakaran or his driver Ravishtikoo. Though, it appears

that the complaint was given by the said Ravishtikoo pursuant to which

Ex.P1 FIR came to be lodged, before the Tribunal only the Insurance

Company has disowned the liability based on the FIR filed by the defacto

complainant namely driver Ravishtikoo. However, the said Ravishtikoo has

not been examined by the Insurance Company to distance itself from his

liability. Under these circumstances, the only conclusion that the Court can

drew is that the driver of the insured vehicle was negligent. Though he has

filed a complaint against the rider of the motor cycle Chandrapa by stating

that he was negligent, the Court has to only come to a conclusion on facts

only based on the preponderance of probabilities and not based on the

statements of the complainant who has not been produced for cross

examination before the Tribunal.

18.It was incumbent on the part of the Insurance Company to have

not only produced the driver for examination/cross examination but also

independent witnesses to distance itself from the liability. Mere reliance on

the FIR and the closure report or charge sheet against the rider of the motor

cycle is not sufficient to conclude that the rider of the motor cycle was fully

responsible for the accident. However, the fact also remains that three https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

persons travelled on a motor cycle which is impermissible, as the motor

cycle only has a seating capacity to carry only two persons.

19.The evidence on record also do not show that the riders were under

influence of alcohol. The accident had taken place in the afternoon at about

01.30 pm at Thenkanikottai to Hosur road near M.Barandhur Village.

Therefore, I am of the view, the fact that the three persons were travelled on

a motor cycle may have partly contributed to the accident, as the insured

Innova had over taken them from the right to stop in front of them and

applied sudden brake to buy water from a medical shop. Therefore, this

Court is inclined to conclude that there was 50% contributory negligence on

the part of the rider of the motor cycle Chandrappa and 50% negligence on

the part of the driver of the insured car namely Ravishtikoo. Therefore,

considering the above, the Tribunal has ought to have awarded just

compensation for the injuries suffered by the respective appellants due to

the accident after considering the evidence on record and or referring the

appellant to medical board. In case there was a case for permanent

disability or partial permanent disability the functional disability with

reference to their avocation is to be determined.

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C.M.A.Nos.4778, 4781 & 4801 of 2019

20.Therefore, I set aside the impugned order and remit the case back

to the Tribunal to ascertain the extent of injuries suffered by the respective

appellants and if required refer them to a medical board for determining the

functional disability before awarding compensation. On the compensation

to be arrived based on the nature of injuries suffered and functional

disability, the Tribunal shall deduct 50% amount towards contributory

negligence on the respective appellants and award a just compensation.

21.These appeals stand partly allowed in terms of the above

observations. No costs.

29.04.2021 jas Internet : Yes / No Index : Yes/No Speaking Order/Non-speaking Order

To:

1.The Divisional Manager, National Insurance Co Ltd, Ist Floor, Saradamma Building, Bye Pass Road, Hosur, Krishnagiri District.

2.The Motor Accidents Claims Tribunal, Sub Court, Hosur, Krishnagiri District.

3.The V.R.Section, Madras High Court, Madras.

https://www.mhc.tn.gov.in/judis/

C.M.A.Nos.4778, 4781 & 4801 of 2019

C.SARAVANAN, J.

jas

C.M.A.Nos.4778, 4781 & 4801 of 2019

29.04.2021

https://www.mhc.tn.gov.in/judis/