Madras High Court
M/S.United India Insurance ... vs S.Umavathy on 1 December, 2021
C.M.A.No.3273 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.3273 of 2012
and M.P.No.1 of 2012
M/s.United India Insurance Company Ltd.,
Branch Office,
No.6/659, Trichy Road,
Ramanathapuram,
Coimbatore. .. Appellant
Vs.
1.S.Umavathy
2.Minor S.Surya
(Minor rep. by mother & guardian, 1st respondent)
3.M.Kalaimani
4.M/s.P.S.G.Institute of Medical
Science & Research,
Peelamedu, Coimbatore 641 004. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment and Decree dated 09.03.2010 in
M.C.O.P.No.221 of 2007 on the file of the Motor Accident Claims Tribunal,
Additional District Court/Presiding Officer, Coimbatore.
1/10
https://www.mhc.tn.gov.in/judis
C.M.A.No.3273 of 2012
For Appellant : Mrs.R.Sreevidhya
For Respondents : Mr.R.Navaneetha Krishnan for R1 & R2
R3-Ex-parte
R4-No appearnce
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the award dated 09.03.2010 in
M.C.O.P.No.221 of 2007 on the file of the Motor Accident Claims Tribunal,
Additional District Court/Presiding Officer, Coimbatore.
2.The appellant/Insurance Company is the 3rd respondent in
M.C.O.P.No.221 of 2007 on the file of the Motor Accident Claims Tribunal,
Additional District Court/Presiding Officer, Coimbatore. The respondents 1
and 2 filed the said claim petition against the respondents 3 & 4 and the
appellant/Insurance Company, claiming a sum of Rs.10,00,000/- as
compensation for the death of one P.Subramaniam, who died in the accident
that took place on 30.01.2003.
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C.M.A.No.3273 of 2012
3.According to the respondents 1 and 2, on the date of accident i.e.,
30.01.2003 at about 3.45 p.m., while the deceased Subramaniam along with
his wife and a realtive was travelling in the van bearing Registration No.TN
37 Y 2724 belonging to the 4th respondent within the P.S.G.Hospital Campus,
the 3rd respondent, driver of the van drove the same in a rash and negligent
manner and while taking a turn near Pillaiyar Kovil, due to uncontrollable
speed, the back door of the van suddenly opened and the deceased fell on the
road. Due to the accident, the deceased died after 2 days of treatment.
4.The driver of the van, 3rd respondent remained exparte before the
Tribunal.
5.The 4th respondent/owner of the van filed counter statement stating
that the premises are situated one kilometer South of Avinashi-Coimbatore
road at Peelamedu and in order to help the patients to cross the said distance,
they are operating a free van services and one such van is the offending
vehicle. On the date of accident, the 3rd respondent, driver of the van closed
the rear door and locked the same. While the van was turning suddenly, the
rear door of the van opened, the deceased Subramaniam, who sat near the
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C.M.A.No.3273 of 2012
door of the van, fell down. The said van was insured with the
appellant/Insurance Company at the time of accident and therefore, the
appellant is liable to pay compensation to the respondents 1 and 2.
6.The appellant/Insurance Company filed counter statement, denying
the averments made in the claim petition and stated that inmates of the van
should ensure that doors of the van were properly locked after their
accomodation in the van, while they were traveling. The deceased has not
taken any such precaution and hence, the appellant is not liable to pay any
compensation to the respondents 1 and 2. The appellant has also denied the
age, nature of avocation and income of the deceased. In any event, the
compensation claimed by the respondents 1 and 2 is excessive and prayed for
dismissal of the claim petition.
7.Before the Tribunal, the 1st respondent examined herself as P.W.1,
one Manikandan was examined as P.W.2 and marked 8 documents as Exs.P1
to P8. The 4th respondent examined one of his personal Officer Kannappa
Nainar as R.W.1 and marked R.C.Book copy as Ex.R1.
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C.M.A.No.3273 of 2012
8.The Tribunal considering the pleadings, oral and documentary evidence
held that the accident occurred only due to rash and negligent driving by the
3rd respondent, driver of the van belonging to the 4 th respondent and directed
the appellant/Insurance Company as insurer of the van to pay a sum of
Rs.6,42,000/- as compensation to the respondents 1 and 2.
9.Challenging the liability fastened on them, the appellant/Insurance
Company has come out with the Civil Miscellaneous Appeal.
10.The learned counsel appearing for the appellant/Insurance Company
contended that the owner of the vehicle violated permit and policy conditions
by carrying third parties in the offending vehicle. The owner of the vehicle
can use the vehicle only for staff and students. Contrary to that, the 4 th
respondent used the van to carry the passengers for hire, at the time of
accident. The deceased was standing in the foot board near the door of the
van as he did not get seat to sit. The Tribunal failed to draw adverse inference
against the driver and owner of the van. The Tribunal failed to consider that
the deceased also contributed negligence to the accident, ought to have
apportioned the liability and prayed for allowing the appeal.
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C.M.A.No.3273 of 2012
11.Though notice has been served on the 4th respondent and their name
is printed in the cause list, there is no representation for them either in person
or through counsel.
12.Heard the learned counsel appearing for the appellant/Insurance
Company as well as the learned counsel appearing for the respondents 1 and
2 and perused the entire materials on record.
13.It is the case of the respondents 1 and 2 that on 30.01.2003 at about
3.45 p.m., the deceased was traveling along with his wife, 1 st respondent and
one relative in the van belonging to the 4th respondent. At that time the back
door of the van suddenly opened, due to rash and negligent driving by 3rd
respondent, driver of the van, while taking a turn and the back door of the van
suddenly opened, the deceased was thrown out of the van, sustained head
injury and inspite of the treatment, he died after two days of the accident. To
substantiate the same, the 1st respondent, who was traveling along with the
deceased at the time of accident, examined herself as P.W.1 and marked First
Information Report as Ex.P1, which was registered against the driver of the
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C.M.A.No.3273 of 2012
van, 3rd respondent. It is the case of the 4th respondent that the 3rd respondent
closed the door and locked the van. When the 3rd respondent was turning the
van, rear door of the van suddenly opened and the deceased, who was sitting
near the door, fell down. The 4th respondent Hospital provided free treatment
to the deceased. The van is being used for taking patients and visitors at free
of cost to the hospital. The van is insured with the appellant and if any
compensation is payable, only the appellant is liable to pay the compensation
and marked R.C.Book as Ex.R1.
14.On the other hand, it is the case of the appellant that it is the duty of
the persons who are traveling in the van, to close the door after sitting in the
van. The deceased and others did not properly close the door and hence, the
deceased also contributed to the accident. To prove their submissions, the
appellant did not examine any witness. The learned counsel appearing for the
appellant now in the appeal contended that while the deceased was standing
in the foot board near the door as he did not get place to sit, fell down, when
the door opened and hence he has also contributed to the accident. In the
appeal, the learned counsel appearing for the appellant further contended that
the van has been used to carry passengers for hire. The appellant has not
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C.M.A.No.3273 of 2012
raised the said issue before the Tribunal and has not let in any evidence to
disprove the case of the respondents 1, 2 and 4. The Tribunal considering the
evidence of P.W.1, documents filed and in the absence of any contra
evidence, held that the accident occurred only due to rash and negligent
driving by the 3rd respondent, driver of the van and the appellant as insurer of
the van is liable to pay compensation to the respondents 1 and 2. There is no
error or irregularity in the said order of the learned Judge warranting
interference by this Court.
15.In the result, this Civil Miscellaneous Appeal is dismissed and the
amount awarded by the Tribunal at Rs.6,42,000/- together with interest at the
rate of 7.5% per annum from the date of petition till the date of deposit is
confirmed. The appellant-Insurance Company is directed to deposit the award
amount along with interest and costs, less the amount already deposited, if
any, within a period of eight weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P. No.221 of 2007. On such deposit, the 1st
respondent is permitted to withdraw her respective share of the award
amount, along with proportionate interest and costs, after adjusting the
amount, if any already withdrawn, by filing necessary application before the
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C.M.A.No.3273 of 2012
Tribunal. The share of the minor/2nd respondent is ordered to be deposited in
any one of the Nationalised Banks till he attains majority. The mother of the
minor/1st respondent is permitted to withdraw the accrued interest once in
three months for the welfare of the minor. No costs. Consequently, connected
Miscellaneous Petition is closed.
01.12.2021
vkr
Index : Yes / No
Internet : Yes / No
To
1.The Additional District Judge/Presiding Officer,
Motor Accident Claims Tribunal,
Coimbatore.
2.The Section Officer,
VR Section, High Court,
Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.3273 of 2012
V.M.VELUMANI, J.
vkr
C.M.A.No.3273 of 2012
and M.P.No.1 of 2012
01.12.2021
https://www.mhc.tn.gov.in/judis
