Madras High Court
The National Insurance Company ... vs Minor. Hariprakash on 24 February, 2021
C.M.A.No.2023 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.02.2021
CORAM
THE HONOURABLE MR.JUSTICE D. KRISHNA KUMAR
C.M.A.Nos.2023, 2024 & 2025 of 2009
and
M.P.Nos.1,1 and 1 of 2009
The National Insurance Company Limited,
Divisional Office at
No.11, Sakthi Road,
Lalbagh Mission Road,
Banglore – 560 027. ... Appellant in all
appeals
Vs.
1.Minor. Hariprakash
[Minor represented by the natural
guardian father Chandrasekaran]
2.Kantharaj
3.Meera Suresh
4.The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
No.12, Ramakrishna Road,
Salem.
5.P.Easwaran
6.P.Rajagopalan ... Respondents in
C.M.A.No.2023 of 2009
https://www.mhc.tn.gov.in/judis/
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C.M.A.No.2023 of 2009
1.Chandrasekaran
2.Minor Jothi prakash
3.Minor Hariprakash
[2nd and 3rd minor petitioners represented
by their guardian father Chandrasekaran]
4.Kantharaj
5.Meera Suresh
6.The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
No.12, Ramakrishna Road,
Salem.
7.P.Easwaran
8.P.Rajagopalan ... Respondents in
C.M.A.No.2024 of 2009
1.Minor. Jothiprakash
[Minor represented by his natural
guardian father Chandrasekaran]
2.Kantharaj
3.Meera Suresh
4.The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
No.12, Ramakrishna Road,
Salem.
5.P.Easwraran
6.P.Rajagopalan ... Respondents in
C.M.A.No.2025 of 2009
https://www.mhc.tn.gov.in/judis/
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C.M.A.No.2023 of 2009
COMMON PRAYER: Civil Miscellaneous Appeals filed under Section 173
of the Motor Vehicles Act, 1988, to set aside the judgment and decree dated
24.10.2008 and made in M.A.C.T.O.P.Nos.113, 114 & 115 of 2005 on the file
of the Motor Accident Claims Tribunal, Pollachi (Motor Accident Claims
Tribunal cum Subordinate Judge of Pollachi).
For Appellant : Mr. S.Vadivel
For Respondents
In CMA.Nos.2023
& 2025/2009 : Mr.D.Raghu [for R4]
R1 - No Appearance
R2 – Notice unserved
RR3, 5 & 6 – Notice served
In CMA.No.2024/2009 : Mr.D.Raghu [for R6]
RR1 to 3 – No Appearance
R4 - Notice unserved
RR5, 7 & 8 - Notice served
*****
COMMON JUDGMENT
The Appellant/Insurance Company has filed these appeals against the
judgment and decree dated 24.10.2008 made in M.A.C.T.O.P.Nos.113, 114, &
115 of 2005 on the file of the Motor Accident Claims Tribunal cum
Subordinate Judge, Pollachi.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2023 of 2009
2. The respondents/claimants have filed a claim petition before the
Tribunal, for claiming compensation amount for the accident happened on
07.05.2005, involving the bus bearing Registration No.TN-27-N-1166.
According to the claimants, the deceased Vijayarani and minor sons were
returning back from Salem in bus bearing Registration No.TN-27-N-1166.
While the bus was proceeding towards Sangakiri to Salem road, another bus
bearing Registration No.TN-27-N-0870 came from opposite direction, at that
time the driver of the motor car bearing registration No.KA-03-B-6773
suddenly overtook the town bus bearing Registration No.TN-27-N-0870
coming in the opposite direction and came extreme right side of the road. The
driver of the bus TN-27-N-1166, in which the petitioners were travelling, on
seeing the car coming at a great speed on the extreme right side, turned the bus
in order to avoid hitting the car. But the car driven in a rash and negligent
manner and the accident had happened.
3. Based on the aforesaid said statement of the claimants, the Tribunal
awarded compensation amount of Rs.1,60,000/- and fixed the liability as
against the appellant/Insurance Company and the respondent/Transport
Corporation. Challenging the said award of the Tribunal, the
appellant/Insurance Company has preferred the appeals before this Court.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2023 of 2009
4. According to the learned counsel for the appellant/Insurance
Company, the Tribunal after considering the oral and documentary evidence
and based on the report of the police however gave its finding that there is
contributory negligence on the part of the appellant/Insurance Company and the
respondent/Transport Corporation, but the grievance of the appellant/Insurance
Company is that the Tribunal has fixed 75% liability towards the compensation
to the claimants payable by the appellant/Insurance company and 25% liability
to the respondent/Transport Corporation. The evidence marked before the
Tribunal clearly prove that it is contributory negligence on both sides and the
Tribunal ought to have fixed 50% liability on the appellant/Insurance Company
as well as the respondent/Transport Corporation.
5. Learned counsel for the respondent/Transport Corporation strongly
objected the contention of the appellant Insurance company and submitted that
the motor car was mechanically overtaking the bus bearing Registration
No.TN-27-N-0870 without noticing the respondent/Transport Corporation
vehicle and thereby caused the accident and the passengers in the
respondent/Transport Corporation also have sustained injury. Therefore, the
Tribunal has rightly fixed the liability.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2023 of 2009
6. On analyzing the aforesaid submission of the rival parties and also
perusing the materials on record, this Court finds that P.W.2, eye-witness to the
accident stated that on 07.05.2005 at about 3.30 p.m. he was talking with his
sister in her house which is situated near Akkammapettai slope; that the TNPSC
Bus bearing Registration No.TN-27-N-1166 came from left side of the road,
another bus bearing Registration No.TN-27-N-0870 came from opposite
direction, the driver of the car bearing Registration No.KA-03-B-6773 over
took the bus bearing Registration No.TN-27-N-0870, resulting in both the
drivers of the buses losing their control and dashed against each other.
Therefore, from the evidence of P.W.2 it is clear that the said accident occurred
due to overtaking of the car driver. Based on the evidence, the Tribunal has
rightly come to the conclusion that there was contributory negligence on both
the vehicle and accordingly, fixed the liability as 75% on the
appellant/Insurance Company and 25% on the respondent /Transport
Corporation. The appeals preferred by the Transport Corporation in
CMA.No.927 to 929 of 2010 in respect of quantum have been settled in a Mega
Lok Adalat. Now the present dispute among the appellant / Insurance Company
and the respondent / Transport Corporation is with regard to the percentage of
liability to pay the compensation amount.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2023 of 2009
7. In my view, P.W.2 has clearly stated that insured vehicle of the
appellant/Insurance Company has attempted to overtake the vehicle bearing
Registration No.TN-27-N-0870. Therefore, the Tribunal rightly came to the
conclusion by fixing as against the appellant / Insurance Company and no other
materials are placed before this Court to absolve the appellant/Insurance
Company from being liable for 75%. Therefore, in such circumstances, this
Court rejects the contention of the learned counsel for the appellant/Insurance
Company.
8. Accordingly, these Civil Miscellaneous Appeals are liable to be
dismissed. No order as to costs. Consequently, connected miscellaneous
petitions are closed.
24.02.2021
bri
Index:Yes/No
Internet:Yes/No
Speaking Order/Non Speaking Order
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2023 of 2009
D. KRISHNAKUMAR, J.
bri
To
1.The Motor Accident Claims Tribunal
cum Subordinate Judge,
Pollachi.
2.The Managing Director,
Tamil Nadu State Transport Corporation Ltd.,
No.12, Ramakrishna Road,
Salem.
3.The Section Officer,
V.R.Section, High Court,
Madras.
C.M.A.Nos.2023, 2024 & 2025 of 2009
and M.P.Nos.1,1 and 1 of 2009
24.02.2021
https://www.mhc.tn.gov.in/judis/
