Madras High Court
The Branch Manager vs Kalaiselvi on 2 December, 2021
C.M.A.No.1385 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1385 of 2014
and
M.P.No.1 of 2014
The Branch Manager,
The Oriental Insurance Company Limited,
City Branch Office, No.1, Siva Complex, 2nd Floor,
No.22-C, Sarada College Main Road,
Salem – 636 016. .. Appellant
Vs.
1.Kalaiselvi
2.Minor. Ragul
3.Minor. Harish
(Minor respondents 2 & 3 repesented by
their Mother & next friend, Kalaiselvi,
1st respondent herein)
4.Mookkiammal
5.C.Sambath .. Respondents
(R5 remained exparte before Tribunal.
Hence, notice to R5 dispensed with)
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
03.08.2012 made in M.C.O.P.No.458 of 2009 on the file of the Motor
Accidents Claims Tribunal, Sub Court, Harur.
1/10
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C.M.A.No.1385 of 2014
For Appellant : Mr.M.Krishnamoorthy
For RR 1 to 4 : Mr.M.Selvam
For R5 : Exparte
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”.)
This Civil Miscellaneous Appeal has been filed against the award dated
03.08.2012 made in M.C.O.P.No.458 of 2009 on the file of the Motor
Accidents Claims Tribunal, Sub Court, Harur.
2.The appellant is the 2nd respondent in M.C.O.P.No.458 of 2009 on
the file of the Motor Accidents Claims Tribunal, Sub Court, Harur. The
respondents 1 to 4 filed the said claim petition claiming a sum of
Rs.10,00,000/- as compensation for the death of one Natarajan, who died in
the accident that took place on 30.12.2008.
3.According to respondents 1 to 4, on 30.12.2008, the deceased
Natarajan was riding the motorcycle bearing Registration No.TN 29 AY 2372
along with pillion rider slowly on the left side of the Uthangarai – Harur main
road towards Harur. At about 08.30 P.M., while the deceased Natarajan was
proceeding near Sengampatti Mettu Kottai diversion road, the lorry bearing
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C.M.A.No.1385 of 2014
Registration No.TN 28 7877 belonging to 5th respondent and insured with
appellant was parked on the middle of the road without any parking signal.
The deceased, who was riding the motorcycle has not anticipated that a lorry
was parked on the middle of the road that too without any signal or red
danger light or stopping signal, unfortunately dashed behind the lorry. In the
said accident, Natarajan sustained fatal injuries and died on the spot.
Therefore, the respondents 1 to 4, filed the above said claim petition claiming
a sum of Rs.10,00,000/- as compensation against the 5th respondent and
appellant-Insurance Company, being the owner and insurer of the lorry
respectively.
4.The 5th respondent - owner of the lorry remained exparte before the
Tribunal.
5.The appellant-Insurance Company, being the insurer of the lorry
belonging to 5th respondent filed counter statement and denied all the
averments made by the respondents 1 to 4. The appellant denied the manner
of accident as alleged by the respondents 1 to 4. The pillion rider of the
motorcycle has given a complaint to the Police that the rider of the motorcycle
only drove the motorcycle in a rash and negligent manner and dashed behind
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C.M.A.No.1385 of 2014
the lorry, which was parked in the extreme left side of the road. Therefore,
there is no negligence on the part of the driver of the lorry and hence, the
appellant is not liable to pay any compensation to the respondents 1 to 4. The
appellant denied the age, avocation and income of the deceased. The appellant
further contended that at the time of accident, both the deceased / rider of the
motorcycle as well the driver of the lorry were not possessing valid driving
license. In any event, the quantum of compensation claimed by the
respondents 1 to 4 are highly excessive and prayed for dismissal of the claim
petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1,
one A.Sambath was examined as P.W.2 and one Vasu, pillion rider of the
motorcycle was examined as P.W.3 and six documents were marked as
Exs.P1 to P6. The appellant-Insurance Company examined the Sub-Inspector
of Police as R.W.1 and one M.Duraisamy as R.W.2 and two documents were
marked as Exs.R1 & R2.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident has occurred only due to negligence on the
part of the driver of the lorry belonging to 5 th respondent and directed the
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C.M.A.No.1385 of 2014
appellant-Insurance Company, being the insurer of the 5th respondent's lorry
to pay a sum of Rs.6,15,000/- as compensation to the respondents 1 to 4.
8.Against the said award dated 03.08.2012 made in M.C.O.P.No.458
of 2009, the appellant-Insurance Company has come out with the present
appeal.
9.The learned counsel appearing for the appellant contended that
Tribunal erred in accepting and relying on the evidence of P.W.3 and failed to
consider the fact that F.I.R. was registered only based on the complaint given
by P.W.3. P.W.3 has deposed in contradiction to the contentions of F.I.R.
According to P.W.3, the accident has occurred only due to rash and negligent
riding by the deceased. The respondents 1 to 4 cannot rely on the portion of
the F.I.R. and Tribunal cannot permit the respondents 1 to 4 to deny the other
portion of the F.I.R. The driver of the lorry has parked the lorry on the
extreme left side of the road. The accident occurred only due to rash and
negligent riding by the deceased, who dashed on the parked lorry. The driver
of the lorry was not responsible for the accident. The Police after
investigation, closed the F.I.R. as charges abated. The Tribunal failed to
consider the evidence of R.W.1 & R.W.2 as well as the documents filed by the
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C.M.A.No.1385 of 2014
appellant and prayed for setting aside the award passed by the Tribunal.
10.The learned counsel appearing for the respondents 1 to 4 made his
submissions in support of the award passed by the Tribunal and prayed for
dismissal of appeal.
11.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondents 1 to 4 and perused the entire
materials on record.
12.From the materials available on record, it is seen that it is the case of
the respondents 1 to 4 that lorry belonging to 5 th respondent and insured with
appellant was parked in the middle of the road without any signal or parking
light. In view of the same, the deceased, who was riding the motorcycle
dashed the motorcycle on the backside of the lorry, sustained fatal injuries
and died. To prove their case, the respondents 1 to 4 examined the pillion
rider as P.W.3. P.W.3 has deposed as that of the averments in the claim
petition. P.W.3 in the cross examination has deposed that Police obtained his
signature only in blank papers and deposed that the lorry was parked only in
the middle of the road and accident occurred due to negligent parking by the
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C.M.A.No.1385 of 2014
driver of the lorry. On the other hand, it is the case of the appellant-Insurance
Company that accident occurred only due to rash and negligent riding by the
deceased, who dashed on the backside of the lorry, which was parked on the
left hand side of the road. To substantiate this contention, the appellant relied
on Ex.P1/F.I.R. According to learned counsel appearing for the appellant, the
F.I.R. was registered based on the statement of P.W.3, who was a pillion rider
and respondents 1 to 4 having marked F.I.R. cannot rely only on one portion
of the F.I.R. and deny the other portion of the F.I.R. with regard to the
manner in which the accident occurred. This contention of the learned counsel
appearing for the appellant is without merits.
13.The pillion rider who is an eyewitness to the accident was examined
as P.W.3, who deposed that accident has occurred only due to the negligent
parking by the driver of the lorry in the middle of the road without any signal
or parking light. Further, he has deposed that in the Hospital, the Police took
his signature in blank papers. To disprove the statement given by P.W.3 on
oath, the appellant did not examine the Police Officer, who investigated the
case, who visited the place of occurrence and prepared the rough sketch. The
appellant examined one Ganesh Kumar, Sub-Inspector of Police as R.W.1,
who clearly deposed that he does not know about the accident personally. He
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C.M.A.No.1385 of 2014
further deposed that in the rough sketch, there is no mention about any
damage to the backside of the lorry. The evidence of R.W.1 in such
circumstances does not substantiate the case of the appellant. The appellant
has not examined any eyewitness or driver of the lorry to prove their case. The
Tribunal considering the evidence of P.W.3 given on oath, has accepted the
same rather than relying on the contents of F.I.R. and held that accident has
occurred only due to rash and negligent parking by the driver of the lorry
belonging to 5th respondent. There is no reason to interfere with the award
passed by the Tribunal warranting interference by this Court.
14.For the above reason, this Civil Miscellaneous Appeal is dismissed
and a sum of Rs.6,15,000/- awarded by the Tribunal as compensation to the
respondents 1 to 4, along with interest and costs is confirmed. The appellant-
Insurance Company is directed to deposit the award amount along with
interest and costs, less the amount if any already deposited, within a period of
six weeks from the date of receipt of a copy of this judgment to the credit of
M.C.O.P.No.458 of 2009 on the file of the Motor Accidents Claims Tribunal,
Sub Court, Harur. On such deposit, the respondents 1 and 4 are permitted to
withdraw their respective share of the award amount as per the ratio of
apportionment fixed by the Tribunal along with proportionate interest and
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C.M.A.No.1385 of 2014
costs after adjusting the amount, if any already withdrawn, by filing necessary
applications before the Tribunal. The share of the minor respondents 2 & 3
are directed to be deposited in any one of the Nationalized Banks, till the
minor respondents 2 & 3 attain majority. On such deposit, the 1st respondent,
being the Mother of the minor respondents 2 & 3 is permitted to withdraw the
accrued interest once in three months for the welfare of the minor respondents
2 & 3. Consequently, the connected Miscellaneous Petition is closed No costs.
02.12.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The learned Subordinate Judge,
Motor Accidents Claims Tribunal,
Harur.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
krk
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C.M.A.No.1385 of 2014
C.M.A.No.1385 of 2014
02.12.2021
https://www.mhc.tn.gov.in/judis
