Madras High Court
The Divisional Manager vs S.Arumugam ... Petitioner/ on 17 February, 2021
C.M.A.No.2278 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.2.2021
CORAM:
THE HON'BLE Mr.JUSTICE D.KRISHNAKUMAR
Civil Miscellaneous Appeal No.2278 of 2010
M.P.No.1 of 2010
The Divisional Manager,
The New India Assurance Co. Ltd.,
Cuddalore – 1. ... 2nd Respondent/Appellant
..Vs..
1. S.Arumugam ... Petitioner/Respondent No.1
2. D.Arumugam ... Respondent No.1/Respondent-2
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgement and decree dated 21.12.2006 made in M.C.O.P.No.438 of 2005 on the
file of Additional Subordinate Judge (Motor Accidents Claims Tribunal) Cuddalore.
For Appellant : Mr.J.Chandran
For Respondent No.1 : Mr.A.N.Viswanatha Rao
*****
JUDGMENT
Brief facts of the case is as follows:
On 28.12.2004 at about 9.30 a.m. when the petitioner/first
respondent herein along with another was travelling in a Minidor vehicle bearing
registration No.PY-01-U-6181 proceeding from East to West, opposite to Primary
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C.M.A.No.2278 of 2010
Health Centre, Kattiyankuppam, the driver of the vehicle drove the vehicle in a
rash and negligent manner, while giving way to the on-coming vehicle, the
aforesaid vehicle capsized, thereby caused accident, resulting in the claimant
sustained multiple grievous injuries including fracture. The claimant has filed a
claim petition before the tribunal claiming compensation of Rs.5,00,000/- against
the appellant and the second respondent herein being the insurer and owner of
the vehicle.
2. The owner of the vehicle viz., second respondent herein remained
exparte before the tribunal. On the side of the claimants, P.W.1 and 2 were
examined and Ex.P1 to 8 were marked. On the side of the respondent, R.W.1 was
examined and Ex.R1 marked.
3 Tribunal, based on the oral and documentary evidence adduced by
both sides, came to the conclusion that due to rash and negligent driving of the
second respondent, the accident occurred. The tribunal while awarding
compensation of Rs.2,15,000/-to the claimants along with interest at the rate of
7.5% per annum from the date of claim petition till realization, fastened the
liability against the appellant/ Insurance Company.
4. Challenging the said award, the Insurance Company has filed the
present appeal against the liability fastened against the Insurance Company and
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C.M.A.No.2278 of 2010
also against the quantum of compensation. The compensation awarded by the
Tribunal under various heads are as follows:
Heads Amount in Rs.
Permanent disability 35% 1,89,000/-
Pain and sufferings 15,000/-
Extra Nourishment 10,000/-
Transport 1,000/-
Total : 2,15,000/-
5. Heard the learned counsel appearing for the appellant/Insurance
Company and the learned counsel appearing for the respondent/claimant and
perused the materials available on record.
6. Notice was ordered by this Court. Mr.A.Viswanathan, counsel
appeared for the first respondent/claimant. But, notice was not served to the
second respondent. Private notice was also permitted. Affidavit of service not
filed before the Registry. This Court is of the view that notice unserved to the
second respondent. Therefore, appeal as against the second respondent is
dismissed.
7. The appellant has raised a plea that the respondent / claimant
travelled in the second respondent vehicle as unauthorised passenger for which
the learned counsel appearing for the appellant relied upon F.I.R. wherein it has
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C.M.A.No.2278 of 2010
been stated that the appellant was waiting for bus and he was travelled in the
Minidor vehicle belongs to the second respondent along with another person. The
said vehicle is classified as goods vehicle. It permits loadman only to travel, but
the claimant was not a loadman, he is unauthorised passenger travelled in the said
vehicle. Therefore, Insurance company is not liable to pay compensation.
8 Notice has not been served on the second respondent in the appeal
is of the year 2010. Tribunal had came to the conclusion that the appellant/
Insurance Company is liable to pay compensation to the claimant. To contest the
case, the owner of the vehicle is not before this Court. The appellant has not
taken steps to serve notice to the second respondent. Since notice was not served
on the second respondent, this Court cannot interfere with the award passed by
the tribunal. However, it is open to the appellant/Insurance Company to proceed
against the owner of the vehicle, second respondent herein in accordance with
law.
9. In view of the above, the appeal stands dismissed with the above
observations. No costs. Connected miscellaneous petition is closed.
17.02.2021
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C.M.A.No.2278 of 2010
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
vaan
To
1. The Additional Subordinate Judge (Motor Accidents Claims Tribunal) Cuddalore
2. The Divisional Manager, The New India Assurance Co. Ltd., Cuddalore – 1.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2278 of 2010
D.KRISHNAKUMAR, J.
vaan
Civil Miscellaneous Appeal No.2278 of 2010
M.P.No.1 of 2010
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2278 of 2010
17.02.2021
https://www.mhc.tn.gov.in/judis/
