Madras High Court
United India Insurance Company ... vs M.Manohari on 17 February, 2021
C.M.A.Nos.1680 & 1681 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 17.02.2021
Coram::
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.M.A.Nos.1680 & 1681 of 2017
United India Insurance Company Limited,
PPS Complex, First Floor,
Mettur Main Road, Omalur ... Appellant
in C.M.A.No.1680 of 2017
/versus/
1. M.Manohari,
2. M.Karthikeyan,
3. M.Sathishkumar,
4. Vadivel,
5. M/s.New India Assurance Company Limited,
Having Office at No.17, Fort Main Road,
Sevaipet, Salem – 636 002.
6. M.B.S.Mani. ... Respondents
in C.M.A.No.1680 of 2017
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle
Act, 1988, against the award and decree dated 30.01.2017 made in M.C.O.P.No.246
of 2013 on the file of the Motor Accident Claims Tribunal (Special District Court),
Salem.
United India Insurance Company Limited,
PPS Complex, First Floor,
Mettur Main Road, Omalur ... Appellant
in C.M.A.No.1681 of 2017
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1680 & 1681 of 2017
/versus/
1. Vijaya,
2. Hemalatha,
3. Selvaraj,
4. Sangeetha,
5. Vadivel,
5. M/s.New India Assurance Company Limited,
Having Office at No.17, Fort Main Road,
Sevaipet, Salem – 636 002.
6. M.B.S.Mani. ... Respondents
in C.M.A.No.1681 of 2017
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle
Act, 1988, against the award and decree dated 30.01.2017 made in M.C.O.P.No.528
of 2012 on the file of the Motor Accident Claims Tribunal (Special District Court),
Salem.
For Appellant : Mr.D.Bhaskaran
in both cases
For R5 : Mr.K.Vinod
in C.M.A.No.1680 of 2017
For R6 : Mr.K.Vinod
in C.M.A.No.1681 of 2017
For R1 to R4 & R6 : No appearance
in C.M.A.No.1680 of 2017
For R1 to R5 & R7 : No appearance
in C.M.A.No.1681 of 2017
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1680 & 1681 of 2017
COMMON JUDGMENT
(i). C.M.A.No.246 of 2017 is filed against the award passed in
M.C.O.P.No.246 of 2013 on the file of Motor Accident Claims Tribunal, (Special
District Court) Salem.
(ii). C.M.A.No.1681 of 2017 filed against the award passed in
M.C.O.P.No.528 of 2012 on the file of Motor Accident Claims Tribunal, (Special
District Court) Salem.
Both the Appeals are preferred by the Insurance Company against the
common judgment passed by the Tribunal, fixing the liability on it to pay
compensation to the claimants.
2. The facts of the case is that, on 21.03.2012 at about 4.30 P.M near
Mettupatti Power House on the Valapadi to Salem road, a Omni car bearing
registration No.TN-29-L-0112 dashed behind the lorry bearing registration No.TN-
54-A-3299. In the said accident, the driver of the Omni car by name V.Mani and one
of the occupant in the Omni car by name Anbu died. The legal heirs of V.Mani
preferred M.C.O.P.No.246 of 2013 claiming compensation of Rs.20 lakhs against the
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C.M.A.Nos.1680 & 1681 of 2017
owner of the lorry, his insurer, owner of the Omni car and his insurer. Similarly, the
legal heirs of the deceased Anbu filed claim petition M.C.O.P.No.528 of 2012
claiming compensation of Rs.15 lakhs against the owners of the omini car and lorry
and the respective Insurance Company.
3. The common facts involved in these two appeals are as below:-
The car bearing registration No.TN-29-L-0112 owned by one
N.B.S.Mani and insured under Untied India Insurance Company. On the fateful day,
the vehicle was driver by V.Mani S/o.Venkateshalam along with Anbu
S/o.Anbazahagan who was travelling in his omni van, as a passenger. According to
the claimants, the lorry bearing registration No.TN-54-A-3299 owned by one
M.D.Vadivel and insured under Untied India Insurance Company without proper
signal stopped suddenly near Mettupatti Power House. The omni van which was
following, dashed behind the lorry. Alleging that the accident occurred due to the
negligence of the lorry driver, the Claim petitions were filed.
4. The respective Insurance Company resisted the claim on the ground
that the accident occurred due to the negligence of the deceased V.Mani, the driver
of the maruti car. He had no valid driving license to drive the motor vehicle. He,
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C.M.A.Nos.1680 & 1681 of 2017
without noticing the moving lorry on the road, negligently dashed behind the lorry.
Being the Tortfeasor and violator of the Motor Vehicles Act, only the owner of the
Maruti van liable to pay compensation and the Insurance Company is not liable to
pay any compensation.
5. The Tribunal, after considering the evidence placed before it, had
concluded that the accident occurred due to the contributory negligence of the maruti
van driver and therefore, he is equally liable for the accident. Hence, deducting 50%
for his contributory negligence, awarded a sum of Rs.4,29,860/- to the legal heirs of
deceased V.Mani, the driver of the omni car.
6. As far as the claim petition (M.C.O.P.No.528 of 2012) filed by the
legal heirs of deceased Anbu, the passenger, the Tribunal had awarded a sum of
Rs.7,04,000/-. The Tribunal held the owner of the maruti van and his insurer is
liable to pay the compensation jointly and severally, it exonerated the owner of the
lorry and his insurer holding that, there is no fault or negligence on the part of the
lorry driver.
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C.M.A.Nos.1680 & 1681 of 2017
7. The Appeals are filed by the insurer of the maruti car on the ground
that the Tribunal failed to note that the accident occurred only due to negligence of
the lorry driver, who failed to exercise reasonable care while driving, halting the
lorry without proper indicator and signal was cause for the accident. Any liability to
compensate the victim ought to have been equally apportioned between the
Insurance Company of the lorry and the maruti van. Further, the driver of the maruti
van, who died in the accident is the Tortfeasor and not entitled for any compensation.
Without valid driving license, he had driven the motor vehicle negligently and cause
the accident. Therefore, the insurer of the maruti van are not liable to pay any
compensation.
8. Heard the Learned Counsel for the appellant and there is no
representation for the claimants/respondents though notice was served on him.
9. As far as the Learned Counsel appearing for the insurer of the lorry it
is submitted that, as per the F.I.R and the evidence, it was the total negligence of the
maruti van driver, who has dashed behind the show moving lorry. Therefore, the
Tribunal rightly exonerated the owner of the lorry and his insurer. In the absence of
any contra evidence, the tribunal award need no interference.
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C.M.A.Nos.1680 & 1681 of 2017
10. The motor accident has occurred involving two vehicles. In the
normal course when there is a collusion of two vehicles moving in the same direction
or in opposite direction, contributory negligence is presumed. But, they are certain
cases were evidence sufficient to indicate that one of the vehicle driver is at no fault.
The instant case, is once such case were the F.I.R given by the lorry driver clearly
indicate that when he was moving slowly with 25 tone load of Sugar bags, the omni
van rashly hit behind the lorry. The driver of the lorry stopped the lorry and found
that two occupants in the maruti van were badly injured. One found dead on the spot
and the driver was taken to the hospital. The said driver also subsequently died.
11. The Tribunal taking into the consideration the evidence of P.W.3
(Mani) who has deposed that the lorry which was going ahead stopped suddenly
without proper signal and that was the cause for the accident. The presence of P.W.3
at the site of occurrence is highly doubtful because he is not the informant to the
police. The police never examined him and recorded the statement. He, on his own,
at the request of the claimant, had come to the Court. As per his evidence, he was
travelling along the Vazapadi – Salem main Road in his motorcycle. 50 feet behind
the maruti car, the lorry which was moving 25 feet ahead of the maruti car suddenly
stopped without giving proper signal. He admits that he was travelling 40kgs speed
at that time. Even going by his own evidence, there was no proper distance
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C.M.A.Nos.1680 & 1681 of 2017
maintained by the car driver while he was following the lorry heavily loaded. Hence,
the cause for the accident is totally due to the negligence of the car driver namely
V.Mani and he being the Tortfeasor and driven the maruti van without valid driving
license, the insurer of the maruti car is not liable to indemnify the owner of the car,
who has engaged a person to drive the car without valid driving license. Therefore, it
is the liability of the owner of the maruti car to compensate the legal heirs of his
deceased employee as well as the occupant. While confirming the quantum of
compensation awarded by the Tribunal, the liability to pay the compensation is fixed
on the 3rd respondent the owner in the claim petitions and their insurance company is
exonerated from the said liability.
12.Accordingly, the Civil Miscellaneous Appeals are Allowed and
liability as against the appellant is exonerated. Records indicates that in compliance
of the interim order passed by this Court in C.M.P.Nos.9001 and 9002 of 2017 dated
15.06.2017, the appellant has already deposited the entire award amount in the credit
of M.C.O.P.No.246 of 2013 and M.C.O.P.No.528 of 2013. Therefore, the claimants
are permitted to withdraw the amount deposited along with interest, if any. The
appellant is given liberty to recover the amount deposit with 7.5% interest from the
owner of the maruti car/N.B.S.Mani, the 3rd respondent in both the claim petitions
M.C.O.P.No.248 of 2013 and M.C.O.P.No.528 of 2012 as per the procedure laid in
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C.M.A.Nos.1680 & 1681 of 2017
Nanjappa vs. State of Karnataka case. No costs.
17.02.2021
Index :Yes/No
Speaking order/Non-speaking order.
bsm
To:-
1.The Motor Accident Claims Tribunal (Special District Court), Salem.
2.The Section Officer, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.1680 & 1681 of 2017
Dr.G.Jayachandran,J.
bsm
C.M.A.Nos.1680 & 1681 of 2017
17.02.2021
https://www.mhc.tn.gov.in/judis/
