Madras High Court
The Divisional Manager vs Tirupathi on 9 December, 2021
CMA No.1728 of 2020
and CMP No.12786 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Civil Miscellaneous Appeal No.1728 of 2020
and CMP No. 12786 of 2020
The Divisional Manager,
National Insurance Company Ltd.,
Anna Salai, Vellore Post,
Vellore District. ... Appellant
Vs.
1.Tirupathi
2. S.Varatharaji
3. K.Raja ... Respondents
Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles
Act, 1988, to set aside the decree and judgment dated 29.07.2019 made in
M.C.O.P.No.561 of 2014 on the file of the Motor Accidents Claims Tribunal
(Special Subordinate Judge), Tiurpattur.
1/10
https://www.mhc.tn.gov.in/judis
CMA No.1728 of 2020
and CMP No.12786 of 2020
For Appellant : Mr. D.Bhaskaran
For Respondents : No appearance
JUDGMENT
The Insurance Company which was saddled with the liability to
pay a compensation of Rs.2,70,629/- to the first respondent for the injuries
suffered by him in a road accident that occurred on 03.03.2014 has come up
with this Appeal, challenging the finding of the Tribunal that the rider of the
Motor Cycle insured with it was responsible for the accident.
2. According to the claimant he was travelling as a pillion rider in
a two-wheeler bearing Registration No.TN 23 BL 2877, the said two-
wheeler was driven by one S.Varatharaji, who was its owner also. The
claimant would allege that the said Varatharaji, drove the vehicle in a rash
and negligent manner and hit against another two-wheeler bearing
Registration No.TN 23 BS 2586, owned by the third respondent in MCOP
namely one K.Raja and driven by one Arulmani. As a result of the accident
the claimant who was a pillion rider was thrown off the vehicle and
https://www.mhc.tn.gov.in/judis
CMA No.1728 of 2020
and CMP No.12786 of 2020
sustained grievous injuries. Claiming that the injuries had resulted in a
permanent disability and he has also suffered considerable pain and
suffering because of the accident, the claimant sought for a compensation of
Rs.10,00,000/-.
3. The claim was resisted by the Insurance Company contending
that the motor cycle bearing Registration No. TN 23 BS 2586, owned by the
third respondent and driven by one Arulmani was not insured with it. While
admitting the insurance of the Motor Cycle bearing registration No. TN 23
BL 2877, the Insurance Company would contend that the rider of the two-
wheeler namely Mr.Varatharaji was not responsible for the accident.
4. Reliance was also placed by the Insurance Company on FIR,
the Accident Report, the Investigation Report which shows that the rider of
the two-wheeler bearing Registration No. TN 23 BS 2586, had pleaded
guilty and paid the fine to demonstrate that it was the negligence of the rider
of the two-wheeler bearing registration No. TN 23 BS 2586, that caused the
accident. Therefore, according to the Insurance Company, the claimant
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CMA No.1728 of 2020
and CMP No.12786 of 2020
being a pillion rider in the vehicle insured with it, cannot seek compensation
from the Insurance Company.
5. The first respondent and the third respondent remained
exparte. The Tribunal on a consideration of the evidence, assessed the
quantum of compensation at Rs.2,70,629/-.
6. Mr.D.Bhaskaran, learned counsel appearing for the Insurance
Company, does not challenge the quantum. He would attack the finding of
the Tribunal on negligence and submit that though FIR was lodged against
the rider of the two-wheeler bearing Registration No. TN 23 BS 2586, the
charge sheet was also laid against him and he had pleaded guilty, the
claimant and Varatharaji, the owner of the two-wheeler bearing registration
No. TN 23 BL 2877, upon learning that the other vehicle bearing
Registration No. TN 23 BS 2586, did not have a valid insurance on the date
of the accident, with a view to shift the liability on the Insurance Company
had filed the claim, as if there was negligence on the part of Varatharaji,
who was the rider and owner of the vehicle insured with the
https://www.mhc.tn.gov.in/judis
CMA No.1728 of 2020
and CMP No.12786 of 2020
appellant/Insurance Company.
7. The Tribunal, however, chose to rely upon the evidence of the
so called independent witness namely P.W.2 to conclude that the rider of the
two-wheeler insured with the appellant/Insurance Company was in fact rash
and negligent and he had caused the accident. In coming to the said
conclusion, the Tribunal rejected the evidence offered by FIR, the Accident
Register, the Charge Sheet filed before the Magistrate and the fact that the
rider of the other two-wheeler bearing Registration No. TN 23 BS 2586, had
pleaded guilty and paid the fine also. All these documentary evidence are
not considered on the ground that those documents could be relied upon
only to establish the factum of accident and not negligence.
8. The Tribunal in one line rejected all these documents holding
that these documents can be relied upon only to the extent of proof of the
accident and not the manner in which the accident took place. The Tribunal
relied upon the evidence of P.W.2 to conclude that the accident occurred due
to the rash and negligent driving of Varatharaji, the owner and rider of the
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CMA No.1728 of 2020
and CMP No.12786 of 2020
two-wheeler bearing Registration No. TN 23 BL 2877. It will be pertinent
to point out at this juncture, the very FIR was registered on the basis of the
information provided by the said Varatharaji. FIR states that the rider of the
other two-wheeler bearing Registration No. TN 23 BS 2586, namely one
Mr.Arulmani was responsible for the accident. The Accident Register shows
that Mr.Arulmani, was under the influence of Alcohol also. The Charge
Sheet has been laid against him and he has also pleaded guilty and paid the
fine on 20.08.2014, before the Judicial Magistrate I, Thirupatur.
9. As regards the oral evidence of P.W.2 though in the chief-
examination, he has said that Varatharaji, drove the vehicle in a rash and
negligent manner and dashed against the other two-wheeler driven by
Arulmani, in cross-examination he conceded that it was Varatharaji and the
claimant, who brought him to the Court to be deposed. That statement by
itself creates a doubt on the integrity or the reliability of the evidence of
P.W.2. He would also state that it was the counsel who brought him to lead
evidence. The above statements made by P.W.2, in my considered opinion,
make him a highly unreliable witness. I am therefore unable to sustain the
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CMA No.1728 of 2020
and CMP No.12786 of 2020
conclusion of the Tribunal regarding negligence. When evidence in the form
of documents is available and oral evidence is also available, the Tribunal
will have to consider both and conclude on preponderance of probabilities.
10. At least two Division Benches of this Court in United India
Insurance Co. Ltd., v. D.Hemavathy and others, reported in 2017 (2)
TANMAC 115, and United India Insurance Co. Ltd., v. Suseela Jothi
Mary and others, reported in Manu/TN/7547/2020 in CMA No.1814 of
2016, have held that FIR and other documentary evidence that are made
available should be looked into in determining the negligence. It is also
settled law that mere involvement of a vehicle in an accident cannot
attribute negligence to the driver of the vehicle, it has to be proved by
evidence. In the case on hand, the evidence in the form of the documents
viz., FIR, the Charge Sheet and the Investigation Report as well as the
admission by the claimant that FIR was lodged against the other vehicle
namely the vehicle bearing Registration No. TN 23 BS 2586, is definitely
entitled to much more probative value than the evidence of P.W.2, which is
very much unreliable.
https://www.mhc.tn.gov.in/judis
CMA No.1728 of 2020
and CMP No.12786 of 2020
11. I have no hesitation in setting aside the conclusion of the
Tribunal on the question of negligence. Once the finding of the Tribunal on
the question of negligence is set aside and it is found that it is the driver of
the vehicle bearing Registration No. TN 23 BS 2586, was responsible for
the accident, the liability to pay the compensation cannot be fastened on the
appellant/Insurance Company.
12. Therefore, the Appeal is partly allowed, the award of the
Tribunal is modified and the appellant/Insurance Company is exonerated
from the liability. The owner of the two-wheeler bearing Registration No.
TN 23 BS 2586, who is arrayed as the third respondent will be liable to pay
the compensation. The Insurance Company is permitted to take back the
amount deposited by it. Consequently, the connected miscellaneous petition
is closed. There shall be no order as to costs.
jv 09.12.2021
Index: No
Internet: Yes
speaking order
https://www.mhc.tn.gov.in/judis
CMA No.1728 of 2020
and CMP No.12786 of 2020
To
1. The Special Subordinate Judge,
Motor Accident Claims Tribunal,
Tiurpattur.
2. The Section Officer,
V.R.Section,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
CMA No.1728 of 2020
and CMP No.12786 of 2020
R.SUBRAMANIAN, J.
jv
Civil Miscellaneous Appeal No.1728 of 2020
and CMP No. 12786 of 2020
09.12.2021
https://www.mhc.tn.gov.in/judis
