Madras High Court
The Branch Manager vs Sudha on 5 February, 2021
C.M.A.No.194 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.194 of 2021
and
C.M.P.No.1388 of 2021
The Branch Manager
The Oriental Insurance Company Ltd.
No.14-193/5, 1st floor
Radhakrishna road, Kuppam
Andhra Pradesh-517 425. .. Appellant
Vs.
1.Sudha
2.Minor S.Madhu Priya
3.Minor S.Sonu Priya
(Minors/respondents 2 and 3
represented by their mother
and next friend 1st respondent)
4.Nagamma
5.P.Muniappa @ Muneppa
6.Manigari Sumitra .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 30.09.2019 made
1/9
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C.M.A.No.194 of 2021
in M.C.O.P.No.472 of 2018 on the file of Motor Accident Claims Tribunal,
Special District Court, Krishnagiri.
For Appellant : Mrs.C.Harini
for M/s.M.B.Gopalan Associates
For R1 to R5 : Mr.S.P.Yuaraj
JUDGMENT
This matter is heard through “Video-conferencing”.
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company to set aside the award dated 30.09.2019 made
in M.C.O.P.No.472 of 2018 on the file of Motor Accident Claims Tribunal,
Special District Court, Krishnagiri.
2.The appellant is 2nd respondent/Insurance Company in
M.C.O.P.No.472 of 2018 on the file of Motor Accident Claims Tribunal,
Special District Court, Krishnagiri. The respondents 1 to 5 filed the said
claim petition claiming a sum of Rs.1,00,00,000/- as compensation for the
death of one Selvaraj, who died in the accident that took place on 08.11.2016.
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C.M.A.No.194 of 2021
3.According to the respondents 1 to 5, on the date of accident i.e., on
08.11.2016, at 17.00 hours, while the deceased Selvaraj was travelling as a
pillion rider in a Yamaha Crux motorcycle belonging to his villager Jameer
Basha, who rode the motorcycle, on Kuppam - Bargur Road, near Paipalayam
village on the extreme left side of the road, the driver of the Mahindra tractor
belonging to the 6th respondent, who was proceeding towards
Adavimulakalapalli village from Paipalayam, drove the same in a rash and
negligent manner, dashed against the motorcycle in which the deceased
travelled as pillion rider and caused the accident. In the accident, the said
Selvaraj sustained fatal injuries and died on the same day in the hospital.
Therefore, the respondents 1 to 5 filed the above claim petition claiming
compensation as against the 6th respondent, owner of the tractor and the
appellant/Insurance Company.
4.The 6th respondent, owner of the tractor, filed counter statement
denying the averments made in the claim petition and stated that the driver of
the tractor belonging to the 6th respondent drove the same carefully. The rider
of the motorcycle Jameer Basha, in which the deceased travelled as pillion
rider suddenly crossed the road and invited the accident. The driver of the
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C.M.A.No.194 of 2021
tractor is having valid driving license to drive the vehicle and the said tractor
is insured with the appellant/Insurance Company. Therefore, the
appellant/Insurance Company is liable to pay compensation to the
respondents 1 to 5.
5.Though the 6th respondent has entered appearance through counsel
and filed counter statement, when the matter was taken up for hearing on
10.07.2019, she was called absent and was set exparte before the Tribunal.
6.The appellant/Insurance Company insurer of the tractor filed counter
statement denying the averments made in the claim petition and stated that
the 6th respondent failed to furnish the vehicular records to the appellant.
While the driver of the tractor was driving the vehicle slowly and carefully
near Paipalayam village curve, the deceased Selvaraj rode the motorcycle
along with one Jameer Basha as pillion rider, suddenly came from opposite
direction in a rash and negligent manner, hit against the tractor and invited
the accident. The negligence is completely on the part of the deceased
Selvaraj and he did not wear helmet at the time of accident. The driver of the
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C.M.A.No.194 of 2021
tractor was not responsible for the accident. The driver of the tractor
belonging to the 6th respondent has been specifically charged under Section 3
read with 181 of the Motor Vehicles Act and he did not possess driving
license to drive the vehicle at the time of accident. Therefore, the
appellant/Insurance Company is not liable to pay any compensation to the
respondents 1 to 5. The appellant/Insurance Company has also denied the
age, avocation and income of the deceased. In any event, the compensation
claimed by the respondents 1 to 5 is excessive and prayed for dismissal of the
claim petition.
7.Before the Tribunal, the 1st respondent, wife of the deceased,
examined herself as P.W.1 and one Jameer Basha, rider of the motorcycle and
eye-witness to the accident, was examined as P.W.2 and 15 documents were
marked as Exs.P1 to P15. The appellant/Insurance Company examined one
Mr.Bakthavachalam, Administrative Officer (legal) of the Insurance
Company as RW.1 and marked five documents as Exs.R1 to R5. The 6th
respondent, owner of the tractor did not let in any oral and documentary
evidence.
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C.M.A.No.194 of 2021
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the tractor belonging to the 6th respondent and directed the
appellant/Insurance Company being insurer of the said tractor to pay a sum of
Rs.15,22,500/- as compensation to the respondents 1 to 5.
9.To set aside the said award dated 30.09.2019 made in
M.C.O.P.No.472 of 2018, the appellant/Insurance Company has come out
with the present appeal.
10.The learned counsel appearing for the appellant/Insurance Company
contended that the present appeal is filed only on the ground that the driver of
the offending vehicle did not possess driving license at the time of accident
and the Tribunal erroneously fastened liability on the appellant and prayed for
setting aside the award of the Tribunal.
11.The learned counsel appearing for the respondents 1 to 5 made his
submissions in support of the award passed by the Tribunal and prayed for
dismissal of the appeal.
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C.M.A.No.194 of 2021
12.The 6th respondent, owner of the tractor remained exparte before the
Tribunal and hence, notice to the 6th respondent is dispensed with.
13.Heard the learned counsel appearing for the appellant/Insurance
Company as well as the learned counsel appearing for the respondents 1 to 5
and perused the entire materials available on record.
14.From the materials on record, it is seen that the appellant/Insurance
Company has taken a specific stand in paragraph No.8 of the counter
statement filed before the Tribunal that the driver of the Mahindra tractor
bearing Registration No.AP-03-BG-9321 was charged under Section 3 read
with 181 of the Motor Vehicles Act. The appellant examined their
Administrative Officer as R.W.1 and marked the charge sheet as Ex.R1. The
6th respondent, owner of the tractor filed counter statement stating that the
driver of the vehicle was possessing driving license at the time of accident.
Subsequently, she did not appear and let in any evidence, she was called
absent and was set exparte before the Tribunal. The respondents 1 to 5 did
not produce any material to show that the driver of the tractor had driving
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C.M.A.No.194 of 2021
license at the time of accident. The Tribunal held that the driver of the
Mahindra tractor was not possessing driving license to drive the said vehicle
at the time of accident. The Tribunal has not given any finding with regard to
charge sheet whether the driver of the tractor was possessing driving license
at the time of accident or not. In view of the same, the award of the Tribunal
is liable to be set aside and is hereby set aside. M.C.O.P.No.472 of 2018 is
remanded back to the Tribunal for fresh consideration only with regard to the
case of the appellant that the driver of the tractor did not possess driving
license to drive the tractor. It is open to the respondents 1 to 5 as well as the
appellant to let in further evidence with regard to driving license if they
desire or advised so.
15.With the above direction, the Civil Miscellaneous Appeal is
allowed. Consequently, connected Miscellaneous Petition is closed. No
costs.
05.02.2021
Index : Yes / No
kj
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C.M.A.No.194 of 2021
V.M.VELUMANI, J.,
kj
To
1.The Special District Judge
Motor Accidents Claims Tribunal
Krishnagiri.
2.The Section Officer
V.R.Section
High Court, Chennai.
C.M.A.No.194 of 2021
and
C.M.P.No.1388 of 2021
05.02.2021
https://www.mhc.tn.gov.in/judis/
