Madras High Court
New India Assurance Co.Ltd vs R.Thilagam on 20 April, 2021
C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014 and
MP.No.1 of 2014
CMA.No.3117 of 2007
New India Assurance Co.Ltd.,
Kumaran Shopping Complex,
Kumaran Road, Tiruppur ... Appellant
Versus
1.R.Thilagam
2.Minor R.Keethana
3.V.Subramaniam
4.Kuppammal
(Minor rep. by her mother & NF
1st respondent)
5.R.Arunthathi
6.National Insurance Co. Ltd.,
Branch Office,
81-D, Chetty Street,
Opp. Bus Stand,
Tiruchengode – 637 211
(5th respondent ex parte in Lower Court and
hence Notice may be dispensed with) ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
Vehicles Act, against the judgment and decree in MCOP.No.468 of 2002
dated 21.04.2006 on the file of the Motor Accidents Claims Tribunal, Chief
Judicial Magistrate Court, Erode.
For Appellant : Mr.E.Rajadurai
for Mr.N.Vijayaraghavan
For Respondents
For R1 to 4 : Mr.N.Manokaran
R5 & 6 : Not ready in notice
CMA.No.1367 of 2007
New India Assurance Co.Ltd.,
Kumaran Shopping Complex,
Kumaran Road, Tiruppur ... Appellant
Versus
1.S.Balu
2.R.Arunthathi
3.National Insurance Co. Ltd.,
Branch Office,
81-D, Chetty Street,
Opp. Bus Stand,
Tiruchengode – 637 211
4.R.Thilagam
5.Minor R.Keerthana
6.V.Subramaniam
7.Kuppammal
(Minor rep. by her mother & NF
4st respondent)
(respondent 2 & 4 to 7 ex parte in Lower Court and
hence Notice may be dispensed with) ... Respondents
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree in MCOP.No.472 of 2002
dated 21.04.2006 on the file of the Motor Accidents Claims Tribunal, Chief
Judicial Magistrate Court, Erode.
For Appellant : Mr.E.Rajadurai
for Mr.N.Vijayaraghavan
For Respondents
R2,4 to 7 : exparte
R1 & 3 : Not ready in notice
CMA.No.375 of 2007
1.Thilagam
2.Minor R.Keerthana
Minor rep. by her mother/
guardian Thilagam
3.V.Subramaniam
4.Kuppammal ... Appellants
Versus
1.R.Arunthathi
2.The Branch Manager,
National Insurance Co. Ltd.,
81-D, Chetty Street,
Opp. Bus Stand,
Tiruchengode – 637 211
Namakkal District
3.The New India Assurance Co Ltd.,
Kumaran Shopping Complex,
Kumaran Road, Tiruppur,
Coimbatore District ... Respondents
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, challenging the negligence fixed, and for enhancement of the
compensation amount awarded in the judgment and decree in
MCOP.No.468 of 2002 dated 21.04.2006 on the file of the Motor Accidents
Claims Tribunal, Chief Judicial Magistrate Court, Erode.
For Appellants : Mr.N.Manokaran
For Respondents
For R3 : Mr.E.Rajadurai
R2 : No Appearance
R1 : Not ready in notice
CMA.No.3539 of 2014
New India Assurance Co.Ltd.,
Kumaran Shopping Complex,
Kumaran Road, Tiruppur ... Appellant
Versus
1.Ponny
2.Minor Senkuttuvan
3.Minor Kesavaraj
4.Kandasamy
5.Veerammal
(Minors 2 & 3 rep. by its mother & Guardian
1st respondent)
6.R.Arunthathi
7.National Insurance Co. Ltd.,
Branch Office,
81-D, Chetty Street,
Opp. Bus Stand,
Tiruchengode – 637 211
8.R.Thilagam
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
9.Minor R.Keerthana
10.V.Subramaniam
11.Kuppammal
(Minor rep. by her mother & NF
8th respondent)
(respondent 6 & 8 to 11 ex parte in Lower Court and
hence Notice may be dispensed with) ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree in MCOP.No.473 of 2002
dated 21.04.2006 on the file of the Motor Accidents Claims Tribunal, Chief
Judicial Magistrate Court, Erode.
For Appellant : Mr.E.Rajadurai
for Mr.N.Vijayaraghavan
For Respondents
R6,8 to 11 : exparte
R1 to 5, 7 : Not ready in notice
COMMON J U D G M E N T
The Civil Miscellaneous Appeal in CMA.No.3117 of 2007 is filed
against the judgment and decree in MCOP.No.468 of 2002 dated 21.04.2006
on the file of the Motor Accidents Claims Tribunal, Chief Judicial
Magistrate Court, Erode; CMA.No.1367 of 2007 is filed against the
judgment and decree in MCOP.No.472 of 2002 dated 21.04.2006 on the file
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court,
Erode; CMA.No.375 of 2007 is filed challenging the negligence fixed, and
for enhancement of the compensation amount awarded in the judgment and
decree in MCOP.No.468 of 2002 dated 21.04.2006 on the file of the Motor
Accidents Claims Tribunal, Chief Judicial Magistrate Court, Erode; and
CMA.No.3539 of 2014 is filed against the judgment and decree in
MCOP.No.473 of 2002 dated 21.04.2006 on the file of the Motor Accidents
Claims Tribunal, Chief Judicial Magistrate Court, Erode.
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 on 29.11.2001, the claimants
and the deceased persons were travelling in a TATA Sumo van from east to
west on the National Highways at Pallagoundenpalayam driven by its driver
Ravi @ Ravichandran, head-on collision with lorry which was driven by its
driver from the opposite direction, due to which the driver and others who
were travelling in the tata sumo van died and some of the other passengers
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
also seriously injured. All have filed separate claim petitions claiming
compensation alleging that only due to rash and negligence driving of the
lorry which was driven from the opposite side caused accident and due to
which some of the passengers died and severally injured. The claim
petitions were also filed as against the owner of the lorry and its insurer i.e.
the second respondent and also as against the insurer of the tata sumo
vehicle.
4. Resisting the same, the third respondent, insurer of the van
filed counter and stated that the deceased Ravi @ Ravichandran was driving
his tata sumo van from east to west on the National Highways 47 Main
Road at Pallagoundenpalayam in a normal speed by observing the traffic
rules. Therefore, there is no fault on the part of the deceased driver and they
are not liable to pay any compensation as claimed by the claimants.
Whereas, the second respondent, the insurer of the lorry filed counter and
stated that the driver of the lorry was driving the lorry in a normal speed
observing all the rules of traffic to his left side of the road. The driver of the
tata sumo drove the vehicle from east to west in an uncontrolled speed and
also in a rash and negligent manner. While overtaking the lorry which was
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
going in front of his vehicle without seeing the lorry which was driven by
its driver from the opposite side, directly dashed against the lorry.
Therefore, the accident took place only on the rash and negligent driving of
the driver of the tata sumo. The accident was reported to the police and FIR
was registered as against the driver of the tata sumo alone. Since, he died
and as such charges were abated against him. Therefore, the insurer of the
lorry is not at all liable to pay any compensation.
5. On the side of the claimants, they examined P.W.1 to P.W.13
and marked Ex.P.1 to Ex.P.36. On the side of the respondents, they
examined RW1 and marked exhibits Ex.R1 to Ex.R4. 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 had fastened
liability on the insurer of the tata sumo vehicle i.e. the third respondent and
awarded compensation. Insofar as the claim petition filed in respect of the
deceased driver in MCOP.No.468 of 2002, the Tribunal awarded
Rs.50,000/- under 'no fault claim' payable by the third respondent and
aggrieved by the same, the claimants as well as the third respondent filed
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
the present appeals for enhancement of the award amount as well as
challenging the award and liability in question.
6. The learned counsel for the appellants in CMA.No.375 of 2007
submitted that though one Kannusamy @ Subramaniam lodged complaint
alleging that only on the rash and negligent driving of the tata sumo driver,
the accident took place, he was not examined by the second respondent
herein. The claimants have examined PW12, who is the eye witness to the
accident and he categorically deposed that only on the rash and negligent
driving of the driver of the lorry, the accident took place. He also deposed
that the driver of the tata sumo had driven his van after following the traffic
rules. Without considering the evidence of PW12, the Tribunal had fastened
the liability on the driver of the tata sumo. Further, the Tribunal only on
assumption, without any material evidence, concluded as if the driver of the
tata sumo had driven the vehicle for the past 1 ½ days without sleeping
since his daughter was missing. Therefore, all the family members had taken
the vehicle and searching for their daughter for 1 ½ days without stopping
the vehicle. Only to claim insurance to the persons who were travelling in
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
the tata sumo, it was deposed that the accident took place only on the rash
and negligent driving of the driver of the lorry. Those conclusions are not
based on any witness and any piece of evidence. When the claimants have
examined PW12, who is the witness to the accident, the Tribunal ought to
have fastened the liability on the driver of the lorry. Further, the Tribunal
awarded only a sum of Rs.50,000/- that too, under 'no fault claim'.
7. The learned counsel for the appellants in the other appeals i.e.
the third respondent in the claim petitions submitted that the accident took
place only on the rash and negligent driving of the lorry's driver. Therefore,
the claimants rightly impleaded the insurer of the lorry as one of the
respondents. One, Kannusamy @ A.P.Subramaniam lodged complaint, that
too alleging that all the persons who travelled in the van and also
mentioning the driver of the tata sumo and alleged that only on the rash and
negligent driving of the tata sumo driver, the accident took place. Even then,
the second respondent failed to examine the complainant who lodged
complaint before the Inspector of Police, Uthukuli Police Station. No other
respondents have appeared before this Court.
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
8. Heard, the learned counsel appearing for the appellants and the
learned counsel appearing for the respondents.
9. On 29.11.2001 at about 5.15 a.m., the deceased driver and
along with other passengers were travelling in a tata sumo from east to west
on the National Highways 47 Main Road at Pallagoundenpalayam. While
being so, the driver of the tata sumo vehicle while overtaking the lorry
which was going in front of the tata sumo vehicle, that too without looking
on the opposite side, the lorry which was driven by its driver from the
opposite side on the left hand side from west to east and head-on collision
was happened due to which, the driver of the tata sumo and other
passengers died and severely injured. One of the eye witness, Kannusamy @
A.P.Subramaniam lodged complaint before the Inspector of Police, Uthukuli
Police Station and the same was registered in Cr.No.350 of 2001 as against
the driver of the tata sumo. He categorically narrated in the complaint that
while tata sumo vehicle was overtaking the lorry, which was running in
front of the tata sumo vehicle, the driver of the tata sumo without seeing the
opposite side had driven the tata sumo vehicle in a rash and negligent
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
manner and directly dashed as against the lorry which was driven from the
opposite side.
10. It is also confirmed from the rough sketch and observation
mahazar that the tata sumo vehicle dashed against the lorry on the right
hand side of the road. If at all the tata sumo vehicle was driven on the left
hand side of the road, the accident would not have taken place. The
complainant who lodged the complaint was not examined by any of the
claimants, since all the claimants and deceased persons are relatives were
travelled in the tata sumo. If they examined the said defacto complainant
Kannusamy @ A.P.Subramaniam, it would go against them and it would
spoil the entire claim petitions. Therefore, they have chosen to examine
PW12 as eye witness to the accident, who deposed that while he was taking
tea on the main road, the tata sumo vehicle which was driven from the east
to west side and at the same time, when the lorry was driven by its driver
from west to east in a rash and negligent manner and dashed against the tata
sumo. Therefore, the accident took place only on the rash and negligent
driving of the driver of the lorry. The evidence of PW12 is not corroborated
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
with observation mahazar as well as rough sketch and also FIR registered in
Cr.No.350 of 2001. Since the driver of the tata sumo died and the entire
charges are abated and accordingly the Inspector of Police, Uthukuli Police
Station, Erode District filed referred charge sheet before the jurisdiction
Magistrate court concerned.
11. In fact, the third respondent is being insurer of the tata sumo
vehicle did not even examine any witness to rebut the evidence of second
respondent. The second respondent marked FIR, Ex.R2 and RCS.106 of
2002 in pursuant to the FIR in Cr.No.350 of 2001 as Ex.R3 and also rought
sketch as Ex.R4. That apart, on perusal of the evidences of the other
claimants, all deposed that only on the rash and negligent driving of the
lorry, the accident took place. As rightly noted by the Tribunal, the accident
took place at about 5.15 a.m. i.e. early morning on 29.11.2001 and
admittedly, the daughter of the driver was missing for past two days and as
such they were searching for her. Therefore, the driver of the tata sumo
vehicle was driving the vehicle without sleeping for the past 1 ½ days and
searching for his daughter. Admittedly, all the persons who were travelled in
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
the tata sumo are close relatives and as such deposed as against the lorry.
Therefore, the Tribunal has rightly fastened liability on the tata sumo
vehicle and awarded compensation. Therefore, this Court finds no infirmity
or illegality in the order passed by the Tribunal. Accordingly, civil
miscellaneous appeals in CMA.Nos.1367 of 2007, 3539 of 2014 and 375 of
2007 are liable to be dismissed.
12. Insofar as appeal in CMA.No.3117 of 2007 filed by the third
respondent is concerned, the Tribunal rightly had fastened liability on the
tata sumo vehicle and its insurer. The appellant herein is held liable to pay
compensation for all the deceased persons and injured. Insofar as the
claimants in MCOP.No.468 of 2002 is concerned, they filed claim petition
on the death of the driver of the tata sumo i.e. Ravi @ Ravichandran.
Therefore, the Tribunal had rightly fastened liability on the tata sumo
vehicle and awarded Rs.50,000/- compensation under No Fault Claim and
concluded that the appellant i.e. the third respondent and its owner held
liable to pay the said amount. Therefore, this Court finds no infirmity or
illegality in the order passed by the court. Accordingly, the Civil
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
Miscellaneous Appeal in CMA.No.3117 of 2007 is also liable to be
dismissed.
13. Accordingly, the civil miscellaneous appeals are dismissed.
Consequently, connected Miscellaneous Petition is closed. No Costs.
(i) In respect of CMA.No.3117 of 2007, the appellant /
insurance company is directed to deposit the total compensation of
Rs.50,000/- with accrued interest and costs as determined at by the Tribunal,
within a period of six weeks from the date of receipt of a copy of this
judgment, after adjusting the amount, if any, already deposited. On such
deposit, the claimants / respondents 1, 3 and 4 herein are permitted to
withdraw the amount awarded as apportioned by the Tribunal by filing
proper application before the Tribunal. The share of the claimant / minor
second respondent herein is directed to be deposited in any one of the
nationalized bank till she attains majority. The first respondent herein
/Mother of the 2nd respondent herein is permitted to withdraw the accrued
interest once in three months.
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
(ii) In respect of CMA.No.1367 of 2007, the appellant / insurance
company is directed to deposit the total compensation of Rs.1,30,000/- with
accrued interest and costs as determined at by the Tribunal, within a period
of six weeks from the date of receipt of a copy of this judgment, after
adjusting the amount, if any, already deposited. On such deposit, the
claimants / first respondent herein is permitted to withdraw the amount
awarded by filing proper application before the Tribunal.
(iii) In respect of CMA.No.375 of 2007, the third respondent
herein/ insurance company is directed to deposit the total compensation of
Rs.50,000/- with accrued interest and costs as determined at by the Tribunal,
within a period of six weeks from the date of receipt of a copy of this
judgment, after adjusting the amount, if any, already deposited. On such
deposit, the claimants / appellants 1, 3 and 4 herein are permitted to
withdraw the amount awarded as apportioned by the Tribunal by filing
proper application before the Tribunal. The share of the claimant / minor
second appellant herein is directed to be deposited in any one of the
nationalized bank till she attains majority. The first appellant /Mother of the
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
2nd appellant herein is permitted to withdraw the accrued interest once in
three months.
(iv) In respect of CMA.No.3539 of 2014, the appellant / insurance
company is directed to deposit the total compensation of Rs.4,44,000/- with
accrued interest and costs as determined at by the Tribunal, within a period
of six weeks from the date of receipt of a copy of this judgment, after
adjusting the amount, if any, already deposited. On such deposit, the
claimants / respondents 1, 4 and 5 herein are permitted to withdraw the
amount awarded as apportioned by the Tribunal by filing proper application
before the Tribunal. The shares of the claimants / minor respondents 2 & 3
herein are directed to be deposited in any one of the nationalized bank till
they attain majority. The first respondent herein/Mother of the respondents 2
& 3 herein is permitted to withdraw the accrued interest once in three
months.
20.04.2021
Index:Yes/No
Internet: Yes/no
Speaking/Non-speaking Order
lok
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C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
G.K.ILANTHIRAIYAN, J.
lok
To
1.The Chief Judicial Magistrate,
Motor Accident Claims Tribunal,
Erode.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
C.M.A.Nos.3117, 1367, 375 of 2007 & 3539 of 2014
20.04.2021
https://www.mhc.tn.gov.in/judis/
