Madras High Court
The New India Assurance Company vs A.Shabeer Ahamed on 25 February, 2021
C.M.A.No.3409 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE D. KRISHNAKUMAR
C.M.A.No.3409 of 2011
and M.P.No.1 of 2011 and
C.M.P.No.219 of 2016
The New India Assurance Company,
No.42, Vasvi Buildings, 2nd Floor,
Big Street, Tiruvannamalai ..Appellant
Versus
1.A.Shabeer Ahamed
2.S.Murugan
3.K.C.Veeramani
4.ICICI Lombard Insurance Company,
No.140, 2nd and 3rd Floor,
Nungambakkam High Road,
Chennai – 34. ..Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, to set aside the judgment and decree dated 14.02.2011 made in
M.C.O.P.No.322 of 2008 on the file of the Motor Accident Claims Tribunal,
Sub Court, Tirupattur, Vellore District.
https://www.mhc.tn.gov.in/judis/
1/11
C.M.A.No.3409 of 2011
For Appellant : Mr.K.Vinoth
For Respondents : Ms.R.Srividhya [for R4]
R2 – Notice unserved
R3 – Notice served
*****
JUDGMENT
The Appellant/Insurance Company has filed this appeal against the
judgment and decree dated 14.02.2011 made in M.C.O.P.No.322 of 2008 on the
file of the Motor Vehicle Accidents Claims Tribunal, Sub Court, Tirupattur,
Vellore District.
2. The learned counsel appearing for the appellant submits that the
second and third respondents were set exparte.
3. The case of the first respondent/claimant is as follows:
On 26.02.2008 at about 3.15 p.m. near Velakkalanatham in between
Natrampalli – Burgur on National Highways at Velakkalanatham Check Post 'U'
turn, the lorry bearing Registration No.TDB-3479 belonging to the 2nd
respondent driven, by its driver in the course of his employment under the 2 nd
respondent in a very rash and negligent manner towards National Highways
main road from Halinpalli on side road and turned towards Natrampalli and hit
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C.M.A.No.3409 of 2011
against the tempo trax bearing Registration No.TN-23-AW-1719 which was
driven by its driver in the course of his employment under 3rd respondent
towards Krishnagiri from Natrampalli slowly and cautiously. Due to the
accident, the 1st respondent/claimant, who was travelling in the tempo trax
bearing Registration No.TN-23-AW-1719 as an agent and Manager of the 3rd
respondent goods sustained grievous injuries on his left shoulder and sustained
fracture on his left proximal in three part and anterior Gleniod. Immediately
after the accident, the claimant was taken to Government Hospital, Tirupattur
and given treatment and from there, he was taken to V.H.Hospital, Tirupattur,
where he had taken treatment and on the next day, the claimant was taken to
MIOT Hospital, Chennai and admitted as an inpatient on 27.02.2008 and he
had taken treatment till 06.09.2008. Thereafter, the claimant had taken
treatment in the above said MIOT Hospital, Chennai as an out patient. Again,
the claimant had taken treatment in a private hospital as an out patient. The
claimant was working as an agent and Manager of the 3rd respondent and he
was earning a sum of Rs.5,000/- per month. Since the claimant suffered
permanent disability, he was not able to carry on his avocation as he was doing
before. Hence, the claimant filed a claim petition seeking compensation in a
sum of Rs.3,00,000/- for the injuries sustained by him in the accident.
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C.M.A.No.3409 of 2011
4. Resisting the claim made by the 1st respondent/claimant, the 2nd
respondent / Insurance company had filed a detailed counter statement inter
alia that the accident did not occur in the manner as projected by the claimant.
They had also denied the occupation and income of the claimant. Thus, they
prayed for dismissal of the claim petition.
5. Before the Tribunal, to prove his case, the claimant examined himself
as PW-1 and one Dr.Elangovan was examined as P.W.2 and documents were
marked as Exs.P1 to P.23. On the side of the respondents, one J.Sarathy DW-1
and Lakshman DW-2 were examined, and documents Exs.DW1 and DW2 were
marked.
6. On appreciation of materials, the Tribunal arrived at a finding that the
accident had occurred due to the rash and negligent driving of the lorry bearing
Registration No.TDB-3479 belonging to the 2nd respondent driven by its driver
and held that the appellant / Insurance Company, as insurer of the said vehicle,
is liable to pay compensation. Accordingly, the Tribunal awarded a sum of
Rs.1,85,000/- as compensation. The break-up details are as follows:
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C.M.A.No.3409 of 2011
Sl. Compensation awarded under the Amount
No. head (in Rs.)
1 Disability 84,000.00
2 Pain and Sufferings 2,000.00
3 Nutrition 5,000.00
3 Attendant 5,000.00
5 Medical Bills 79,194.00
6 Transport 2,000.00
7 Income 7,806.00
TOTAL 1,85,000.00
7. Heard the learned counsel for appellant / Insurance Company and the
learned counsel appearing for the 1st respondent and learned counsel for the 4th
respondent.
8. According to the learned counsel for the appellant/Insurance
Company, the learned counsel for the 1st respondent/claimant had preferred the
claim petition in M.C.O.P.No.322 of 2008 towards the compensation amount
for the grievous injury sustained by him due to the rash and negligent driving of
the driver, driven by the Appellant/Insurance Company. Both the drivers had
lodged complaints. Considering the oral and documentary evidence adduced,
the Tribunal has awarded compensation of Rs.1,85,000/- to the claimant by
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C.M.A.No.3409 of 2011
fixing the liability as against the Appellant/Insurance Company. Challenging
the award of the Tribunal fastening the liability on the appellant/Insurance
Company, the present appeal has been preferred.
9. According to the learned counsel for the Appellant/Insurance
Company, the driver of the vehicle insured with the appellant had lodged a
complaint before the Station House Officer. Based on the complaint, an FIR
was registered in Crime No.230 of 2008. From the said complaint, it is very
clear that because of the vehicle insured with the 4th respondent, the accident
had happened. At the time of trial, based on the claimant's evidence, the
Tribunal has awarded the compensation amount fixing the liability on the
Appellant/ Insurance Company. According to the Appellant/Insurance
Company, the complaint lodged by the driver of the vehicle insured with the
appellant was not considered by the Tribunal. Therefore, the
appellant/Insurance Company has to be exonerated of the liability.
10. The learned counsel for the 4th respondent / Insurance company
would submit that the Court below had elaborately considered the evidence
adduced by the claimant and came to the conclusion that due to the negligence
on the part of the vehicle insured with the appellant, the said accident had
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C.M.A.No.3409 of 2011
happened. Therefore, no interference is warranted with the award passed by the
Tribunal.
11. Considered the rival submissions of the parties and perused the
materials on record.
12. The point for consideration in the appeal is whether the
appellant/Insurance company is liable to pay the compensation amount for the
disputed negligence on the part of the driver of the vehicle insured with the
appellant/insurance company.
13. The driver of the vehicle insured with the appellant had lodged a
complaint before the Station House Officer, Natrampalli, on 26.02.2008. In the
aforesaid FIR, it is specifically stated that the driver of the 4 th respondent
insured vehicle committed a mistake and due to his rash and negligent driving,
the said accident had happened. It is an admitted fact that P.W.1 is the claimant
who was also travelling along with the driver in the vehicle belonging to the 3 rd
respondent insured with the 4th respondent. Further, it is brought to the notice of
this Court that after the accident, P.W.1 had preferred the complaint after a
period of three weeks by stating that the vehicle insured with the appellant was
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C.M.A.No.3409 of 2011
involved in the said accident, due to which he sustained injuries. Apart from
that, there is no other material placed on the side of the appellant and the driver
of the appellant insured vehicle as well as the driver of the 4th respondent
insured vehicle have not been examined before the Tribunal. In the absence of
any other materials to prove that the claimant was an agent of the 3 rd respondent
and was not travelling as an unauthorised passenger in the vehicle insured with
the 4th respondent, there is some force in the contention of the appellant that the
appellant Insurance Company alone cannot be held liable. However, the
appellant has not established before this Court to absolve itself of the liability
of the aforesaid accident. Considering the complaint made by the driver of the
vehicle insured with the appellant, this Court holds that both the vehicles are
responsible and liable for the said accident. Therefore this Court fixes the
negligence on the part of the appellant as well as 4th respondent.
14. In view of the above said discussion, the Appellant/ Insurance
Company is liable to pay 50% of the compensation amount to the claimant.
Therefore the award passed by the Tribunal is modified by directing the
Appellant/Insurance Company to deposit 50% of the total compensation
amount awarded by the Tribunal and the remaining 50% shall be deposited by
the 4th respondent/Insurance company, less amount already deposited within a
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C.M.A.No.3409 of 2011
period of six weeks from the date of receipt of a copy of this order.
15. According to the learned counsel for the Appellant/Insurance
Company, the appellant had already deposited the entire compensation amount
before the Tribunal. Therefore, the 4th respondent shall deposit 50% of the
compensation amount before the Tribunal within a period of four weeks from
the date of receipt of a copy of this order. The Appellant/Insurance Company is
entitled to withdraw the excess deposited amount before the Tribunal by filing
appropriate application. The 1st respondent / claimant is permitted to withdraw
the said amount by filing appropriate application before the Tribunal.
16. In the result, this Civil Miscellaneous Appeal is partly allowed. No
order as to costs. Consequently, connected miscellaneous petitions are closed.
25.02.2021
bri
Index:Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3409 of 2011
To
1.The Motor Vehicle Accidents Claims Tribunal,
Sub Court, Tirupattur, Vellore District.
2.The Section Officer,
V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.3409 of 2011
D. KRISHNAKUMAR, J.
bri
C.M.A.No.3409 of 2011
and M.P.No.1 of 2011 and
C.M.P.No.219 of 2016
25.02.2021
https://www.mhc.tn.gov.in/judis/
