Madras High Court
S. Santhakala vs Vijayakumar on 24 August, 2021
C.M.A.No.790 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
C.M.A.No.790 of 2020
1. S. Santhakala
2. S. Akshaya (Minor)
3. S. Sri Vidhya (Minor)
Minor represented by M.N.F.S. Santhakala
4. Kathirvel ... Appellants
Vs.
1. Vijayakumar
2. The New India Assurance Co. Ltd.,
Motor Third Party Cell,
No. 45, Moore Street, Chennai - 600 001 .... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated 07.03.2019
made in M.C.O.P.No.7304 of 2013 on the file of the Motor Accidents Claims
Tribunal, II Judge, Court of Small Causes, Chennai 600 104.
For Appellants : Mr. C. Richard Suresh Kumar
For Respondents : Mr. J. Chandran
1/8
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C.M.A.No.790 of 2020
JUDGMENT
The matter is heard through "Video Conferencing".
This Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decree dated 07.03.2019 made
in M.C.O.P.No.7304 of 2013 on the file of the Motor Accidents Claims
Tribunal, II Judge, Court of Small Causes, Chennai 600 104.
2. The appellants are the claimants in M.C.O.P.No.7304 of 2013 on the
file of the Motor Accident Claims Tribunal, Principal District Court, II Judge,
Court of Small Causes, Chennai. They filed the said claim petition, claiming a
sum of Rs.10,00,000/- as compensation for the death of one Shanmugam, who
died in the accident that took place on 28.07.2013.
3. According to the appellants, on 28.07.2013 at about 18.45 hrs while
the deceased was riding his motor cycle bearing Registration No. TN-22-CD-
0182 at GST Road and when he was nearing Asarkana Bus stop, the deceased
drove the motor cycle in a rash and negligent manner and hit against the centre
median of the road as a result of which the vehicle toppled resulting in death.
The Inspector of Police, St.Thomas Mount Traffic Investigation Wing has
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C.M.A.No.790 of 2020
registered a case in Cr.No.1027 of 2013 as against the rider of the two wheeler
bearing Registration No.TN-22-CD-0182 for the offences Under Section 279,
337 and 304(A) of IPC terming it as an accidental fall. According to the
claimants, the deceased was 32 years old at the time of accident and was a Car
driver and earning Rs.12,000/- per month at the time of accident. The 1st
petitioner/Santhakala is the wife and petitioners 2 and 3 are children and 4th
petitioner is the father of the deceased Shanmugam. Therefore, the appellants
filed the said claim petition claiming a sum of Rs.10,00,000/- as compensation.
4. The 1st respondent-owner of the motor cycle remained exparte before
the Tribunal.
5. The learned cousnel for the 2nd respondent-Insurance Company
submitted that the accident has occurred due to negligence on the part of the
deceased only. Hence, the 2nd respondent-Insurance Company is not liable to
pay any compensation to the appellants.
6. The Tribunal has considered all the materials on record and the
judgment relied on by the learned counsel for the appellants and rightly
dismissed the claim petition and hence, prayed for dismissal of the appeal.
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C.M.A.No.790 of 2020
7. Before the Tribunal, the 1st appellant examined herself as P.W.1 and 9
documents were marked as Exs.P1 to P9. The 2nd respondent-Insurance
Company did not let in any oral or documentary evidence.
8. The Tribunal considering the pleadings, oral and documentary
evidence dismissed the claim petition on the ground that the deceased was a
tortfeasor himself and that his legal heirs are not entitled to make any claim for
compensation.
9. Against the said order of dismissal dated 07.03.2019 made in
M.C.O.P.No.7304 of 2013, the appellants have come up with the present
appeal for granting compensation.
10. The deceased who was the borrower of the motor cycle bearing
Registration No. TN–22–CD-0182 met with a road accident on 28.07.2013.
According to the claimants the deceased was riding motor cycle on 28.07.2013
and hit against the centre median of the road, resulting in his death. A case has
been registered by the police under Section 279, 337 and 304(A) of IPC,
terming it as an accidental fall. The deceased was 32 years old and was
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C.M.A.No.790 of 2020
working as a Car driver and earning a sum of Rs.12,000/- per month.
According to the claimants, the owner of the motor cycle and the insurer of the
said vehicle are said to be jointly and severally liable to pay the compensation
for the accident. Mr.Vijayakumar, owner of the vehicle was set exparte and
the Insurance Company has denied the accident and contended that the motor
cycle was driven in a rash and negligent manner and dashed against the median
of the road and that the deceased contributed to the alleged accident and hence
Insurance Company is not liable to pay any compensation. It is also stated that,
there is no valid driving license and the deceased being a tort-feasor claimants
are not entitled to any compensation as prayed for.
11. The Tribunal came to the conclusion that the deceased was riding the
motor cycle after borrowing it from the owner and met with an accident and
that no claim under Section 163-A of M.V. Act is maintainable. When the
owner cannot be a recipient of the compensation, the borrower is also not
entitled to any compensation and rejected the claim. The factum of case is that
the deceased had borrowed the vehicle from the owner namely Vijayakumar,
who was set exparte before the Tribunal and the same is not in dispute. The
claimants relied upon the decision of this Court reported in 2018 (2) TN MAC
499 in the case of National Insurance Company Vs P.Suresh and others and
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C.M.A.No.790 of 2020
contended that in terms of amended provisions of Section 163-A of M.V. Act
compensation of Rs.5,00,000/- can be extended to the claimants and that
Motor Vehicle legislation being a Social Welfare one, it should be interpreted
in order to extend the benefit of the same to poorer sections of the society and
the remaining compensation should be paid by the State Government after
tracing out the vehicle and its driver. In this case, as there is no hit and run and
that the driver of the vehicle hit the centre median and caused the accident,
benefits of the amended provisions can be extended. The accident took place
on 09.08.2019, Section 163-A of M.V.Act came into force on 01.01.2019.
Though it is a fact that M.V.Act is a Social Welfare legislation, when the
amendment is prospective, it cannot be applied retrospectively and it would run
counter to the statutory provisions.
12. Hence, I find that the decision relied on by the appellants may not be
applicable to the facts of this case, more so in the light of the judgment
reported in National Insurance Company Vs P.Suresh and others. If the
contention of the appellants are accepted, then everyone who had met with an
injury or the legal heirs or the dependants of the deceased who met with an
accident prior to 2019 will knock the doors of the Court for compensation and
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C.M.A.No.790 of 2020
it would amount to opening of pandoro's box.
13. Accordingly the Civil Miscellaneous Petition is dismissed. No costs.
24.08.2021
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Index : Yes / No
Internet : Yes / No
Speaking /Non-speaking order
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C.M.A.No.790 of 2020
S. VAIDYANATHAN, J.
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C.M.A.No.790 of 2020
24.08.2021
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