Madras High Court
M/S.Cholamandalam Ms General vs Muniammal on 10 February, 2021
C.M.A.No.247 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.247 of 2021
and
C.M.P.No.1597 of 2021
M/s.Cholamandalam MS General
Insurance Company Limited
No.131/1/25A, ground floor
Bye-pass road
Opp. to smart shopping mall
Dharmapuri-636 701. .. Appellant
Vs.
1.Muniammal
2.Rathinam
3.Settu
4.Rekha
5.Rajeshwari
6.M.Kalisamy .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 26.02.2020 made
1/10
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C.M.A.No.247 of 2021
in M.C.O.P.No.624 of 2017 on the file of Motor Accident Claims Tribunal,
Special District Court, Dharmapuri.
For Appellant : Mr.J.Michael Visuvasam
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company to set aside the award dated 26.02.2020 made
in M.C.O.P.No.624 of 2017 on the file of Motor Accident Claims Tribunal,
Special District Court, Dharmapuri.
2.The appellant is 2nd respondent/Insurance Company in
M.C.O.P.No.624 of 2017 on the file of Motor Accident Claims Tribunal,
Special District Court, Dharmapuri. The respondents 1 to 5 filed the said
claim petition claiming a sum of Rs.30,00,000/- as compensation for the
death of one Venkatesan, who died in the accident that took place on
04.05.2017.
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C.M.A.No.247 of 2021
3.According to the respondents 1 to 5, on the date of accident i.e., on
04.05.2017 at 9.15 p.m., while the deceased Venkatesan was riding in his
Bajaj Pulsar motorcycle on Dharmapuri – Harur road, near Gunchettipatti bus
stop, the driver of the Eicher van belonging to the 6th respondent, who was
coming in the opposite direction from Harur to Dharmapuri, drove the same
in a rash and negligent manner, dashed against the motorcycle driven by the
said Venkatesan and caused the accident. In the accident, the said
Venkatesan sustained fatal injuries and died in the hospital. Therefore, the
respondents 1 to 5 filed the above claim petition claiming compensation as
against the 6th respondent, owner of the Eicher van and the
appellant/Insurance Company.
4.The 6th respondent, owner of the Eicher van, remained exparte before
the Tribunal.
5.The appellant/Insurance Company insurer of the Eicher van filed
counter statement denying the averments made in the claim petition and
stated that the driver of the Eicher van belonging to the 6th respondent did not
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C.M.A.No.247 of 2021
possess valid driving license to drive the vehicle at the time of accident. The
6th respondent has to furnish the particulars of policy, date, time and place of
accident to the appellant. The driver of the Eicher van drove the vehicle
without possessing fitness certificate and permit at the time of accident and
the same is in violation of the terms and conditions of the policy. The
deceased Venkatesan did not possess driving license to ride the motorcycle
and did not wear helmet at the time of accident. The accident is head on
collision of two vehicles. The owner and insurer of the motorcycle were not
made as parties to the claim petition and hence, the claim petition is bad
for non-joinder of necessary parties. Therefore, the appellant/Insurance
Company is not liable to pay any compensation to the respondents 1
to 5. In any event, the compensation claimed by the respondents 1 to 5
is excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent, mother of the deceased,
examined herself as P.W.1 and one Munusamy, eye-witness to the accident,
was examined as P.W.2 and 18 documents were marked as Exs.P1 to P18. The
appellant/Insurance Company examined one Mr.Ravi, Junior Assistant in
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C.M.A.No.247 of 2021
R.T.O., Dharmapuri, as R.W.1 and one Mr.Lakshmanakumar, Official of the
Insurance Company as R.W.2 and marked four documents as Exs.R1 to R4.
7.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 Eicher van belonging to the 6th respondent and directed the
appellant/Insurance Company being insurer of the said Eicher van to pay a
sum of Rs.14,39,600/- as compensation to the respondents 1 to 5 at the first
instance and recover the same from the 6th respondent as he has violated the
terms and conditions of the policy.
8.To set aside the said award dated 26.02.2020 made in
M.C.O.P.No.624 of 2017, the appellant/Insurance Company has come out
with the present appeal.
9.Though the learned counsel appearing for the appellant/Insurance
Company raised a ground that compensation awarded by the Tribunal is
excessive, at the time of arguments, restricted his argument only with regard
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C.M.A.No.247 of 2021
to negligence fixed on the driver of the Eicher van belonging to the 6 th
respondent and liability fastened on the appellant and contended that the
Tribunal erred in holding that the accident has occurred due to rash and
negligent driving by the driver of the Eicher van belonging to the 6th
respondent. The Tribunal overlooked the fact that the accident occurred only
due to negligent riding of the motorcycle by the deceased. The Tribunal failed
to see that F.I.R. was registered based on the complaint given by the 2 nd
respondent, the father of the deceased, who was not an eye-witness to the
accident. The evidence of P.W.2 is only an imaginary and contrary to the
documentary evidence viz., Ex.P2/post-mortem certificate and Ex.R2/Motor
Vehicle Inspector's Report and prayed for setting aside the award of the
Tribunal.
10.Heard through “Video-conferencing” the learned counsel appearing
for the appellant/Insurance Company and perused the entire materials on
record.
11.It is the case of the respondents 1 to 5 that on 04.05.2017 at 9.15
p.m., while the deceased Venkatesan was riding in his motorcycle carefully
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C.M.A.No.247 of 2021
on the left side of the road, the driver of the Eicher van belonging to the 6 th
respondent, who was coming in the opposite direction, drove the same in a
rash and negligent manner, dashed on the motorcycle driven by the deceased
Venkatesan and caused the accident. The said Venkatesan sustained fatal
injuries in the accident and died in the hospital. Therefore, the respondents 1
to 5 filed claim petition claiming compensation for the death of Venkatesan.
To prove their case, they examined the mother of the deceased as P.W.1 and
one Munusamy, eye-witness to the accident as P.W.2 and marked F.I.R.,
which was registered against the driver of the Eicher van as Ex.P1. On the
other hand, it is the case of the appellant/Insurance Company that the
accident occurred only due to negligence of the deceased, who rode the
motorcycle in a rash and negligent manner, dashed on the Eicher van. The
appellant did not examine the driver of the Eicher van or any eye-witness to
substantiate their case. Further, the 6th respondent, owner of the Eicher van or
his driver did not lodge any complaint against the rider of the motorcycle, the
deceased Venkatesan or filed any objection to the contents of F.I.R. being
registered against the driver of the Eicher van. The Tribunal considering the
entire materials on record and evidence of P.W.2, eye-witness, Ex.P1/F.I.R.
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C.M.A.No.247 of 2021
and in the absence of any contra evidence let in by the appellant, held that the
accident occurred only due to rash and negligent driving by the driver of the
Eicher van and considering the fact that the 6th respondent permitted the
driver to drive the Eicher van without fitness certificate and violated the
policy conditions, ordered pay and recovery and directed the
appellant/Insurance Company to pay compensation to the respondents 1 to 5
at the first instance and recover the same from the 6 th respondent. There is no
error in the said award of the Tribunal warranting interference by this Court.
12.In the result, the Civil Miscellaneous Appeal is dismissed and the
sum of Rs.14,39,600/- awarded by the Tribunal as compensation to the
respondents 1 to 5 along with interest and costs is confirmed. The
appellant/Insurance Company is directed to deposit the entire amount
awarded by the Tribunal along with interest and costs, less the amount
already deposited if any, within a period of six weeks from the date of receipt
of a copy of this judgment at the first instance and recover the same from the
6th respondent. On such deposit, the respondents 1 to 5 are permitted to
withdraw their respective share of the award amount as per the apportionment
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C.M.A.No.247 of 2021
fixed by the Tribunal, along with proportionate interest and costs, less the
amount if any, already withdrawn. Consequently, connected Miscellaneous
Petition is closed. No costs.
10.02.2021
Index : Yes / No
kj
To
1.The Special District Judge
Motor Accidents Claims Tribunal
Dharmapuri.
2.The Section Officer
V.R.Section
High Court, Chennai.
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C.M.A.No.247 of 2021
V.M.VELUMANI, J.,
kj
C.M.A.No.247 of 2021
and
C.M.P.No.1597 of 2021
10.02.2021
https://www.mhc.tn.gov.in/judis/
