Madras High Court
The National Insurance Company ... vs Manimaran on 25 February, 2021
1 CMA No.1802 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.02.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.1802 of 2017
The National Insurance Company Ltd.,
122/165, Netaji Road,
Manjakuppam, Cuddalore,
Tamilnadu 607 001. ...Appellant
Vs
1.Manimaran
2.Veeramani ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 01.09.2016 made
in M.C.O.P.No.22 of 2014 on the file of the Motor Accidents Claims
Tribunal, Subordinate Court, Neyveli.
For Appellant : Mr.S.Vadivel
For Respondents : Mr.M.Selvam for R1
R2 not ready notice
JUDGMENT
Heard the learned counsel for the appellant and first respondent. The
Insurance Company is the appellant herein.
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2. The appeal is filed by the Insurance Company being aggrieved by
the award passed by the Tribunal.
3.The short point canvassed in the appeal against the award passed by
the Tribunal is that when the claim petition filed under Section 140 of the
Motor Vehicles Act under no fault liability clause, the Tribunal has awarded
Rs.65,500/- contrary to the provisions of the Act. Hence, pointing the legal
error in the award, the present appeal is filed.
4.The brief facts of the case is that on 16.01.2013 at about 4
p.m.,while the claimant was riding his two wheeler along Cuddalore to
Vridhachalam main road near Jayapriya Theatre, Tata Indica car proceeding
from the opposite direction hit the claimant's two wheeler and caused the
accident. Due to the said accident, the claimant sustained multiple fracture
and was taken to the Government Hospital, Cuddalore. After first aid, he
was shifted to a private hospital and got treatment for his injuries. At the
time of accident, the claimant was 36 years old working as Contract labour
in NLC limited, Neyveli and was earning Rs.9,000/- per month. Due to the
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accident, he has lost his income and unable to maintain himself. Hence,
claim petition was filed for Rs.5,00,000/- against the owner of the Tata
Motor car bearing Registration No.TN 31 AZ 8552 and the Insurance
Company.
5.The Insurance company filed its counter stating that the first
respondent drove the car carefully and it was the claimant coming in the
opposite direction on the wrong side. On seeing him, the car driver applied
brake and stopped but the claimant dashed against the halted car and
sustained injury. The police registered F.I.R. against the claimant and after
enquiry, he was charged for the offence under Sections 279 and 337 I.P.C.
Therefore, the Insurance Company is not liable to pay any compensation to
the claimant, who is at fault.
6.Before the Tribunal, the claimant subjected himself for examination
as P.W.1 and the doctor who gave disability certificate was examined as
P.W.2. 7 exhibits were marked on his behalf. On behalf of the respondent,
two witnesses viz., the Assistant in the second respondent Insurance
Corporation and the Inspector of Police, who investigated the motor
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accident were examined as R.W.1 and R.W.2. 5 Exhibits were marked
particularly the fine receipt Ex.X5 which indicates that the claimant has
paid fine, was relied by the Insurance Company to show that the accident
occurred due to the fault of the claimant and he is entitled for compensation
only as per Section 140 and not under Section 166. However, the Tribunal
considering the injuries sustained by the claimant awarded a sum of
Rs.35,000/- for the injuries and another Rs.30,500/- under the other non
conventional head.
7.The question of law raised in the appeal is whether in the claim
petition filed under Section 140 of the Motor Vehicles Act and proved to be
an accident due to the negligence of the claimant, the Tribunal can pass an
award over and above the statutory liability.
8.Section 140 of the Motor Vehicles Act reads as below:
“140. Liability to pay compensation in certain cases on
the principle of no fault. –
(1) Where death or permanent disablement of any
person has resulted from an accident arising out of the use of
a motor vehicle or motor vehicles, the owner of the vehicles
shall, or, as the case may be, the owners of the vehicles shall,
jointly and severally, be liable to pay compensation in respect
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of such death or disablement in accordance with the
provisions of this section.
(2) The amount of compensation which shall be payable
under subsection (1) in respect of the death of any person shall
be a fixed sum of [fifty thousand rupees] and the amount of
compensation payable under that sub-section in respect of the
permanent disablement of any person shall be a fixed sum of
[twenty – five thousand rupees].
(3) In any claim for compensation under sub-section (1),
the claimant shall not be required to plead and establish that
the death or permanent disablement in respect of which the
claim has been made was due to any wrongful act, neglect or
default of the owner or owners of the vehicle or vehicles
concerned or of any other person.
(4) A claim for compensation under sub-section (1) shall
not be defeated by reason of any wrongful act, neglect or
default of the person in respect of whose death or permanent
disablement the claim has been made nor shall the quantum of
compensation recoverable in respect of such death or
permanent disablement be reduced on the basis of the share of
such person in the responsibility for such death or permanent
disablement.
(5) Notwithstanding anything contained in sub-section
(2) regarding death or bodily injury to any person, for which
the owner of the vehicle is liable to give compensation for
relief, he is also liable to pay compensation under any other
law for the time being in force :
Provided that the amount of such compensation to be
given under any other law shall be reduced from the amount of
compensation payable under this section or under section 163
– A].”
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9.The F.I.R. which is marked as Ex.P1 indicates that the accident
occurred due to the driver of the negligence of the two wheeler rider
Manimaran who is the claimant. He has dashed against the Tata Indica Car
while riding his two wheeler on the wrong side of the road. Ex.X5 is the
fine receipt which reveals that the claimant has pleaded guilty in
S.T.C.No.257 of 2013 and paid a fine of Rs.800/- on 15.05.2013. Ex.X3 is
the order passed in S.T.C.No.257 of 2013 by the District Munsif cum
Judicial Magistrate at Neyveli. When the claim petition filed under Section
140 of the Motor Vehicles Act and evidence also indicates that the accident
has occurred only due to the fault of the claimant, the Tribunal cannot award
over and above what prescribed under the statute. Therefore, the award of
the Tribunal is liable to be modified.
10.Accordingly, the Tribunal award is modified and a sum of
Rs.25,000/- only is awarded as compensation with 7.5% interest from the
date of filing the petition till the date of realisation.
11.Learned counsel appearing for the appellant submits that the entire
award amount has been deposited in the CMA account. If so, the
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respondent claimant is permitted to withdraw the award amount with
interest and the balance amount is permitted to be withdrawn by the
appellant herein on appropriate petition.
12.In the result, the Civil Miscellaneous Appeal is partly allowed.
No order as to costs.
25.02.2021
vri
To
1.Motor Accidents Claims Tribunal,
Subordinate Court,
Neyveli.
2.The Section Officer,
V.R.Section,
Madras High Court.
https://www.mhc.tn.gov.in/judis/
Dr.G.JAYACHANDRAN,J.
VRI
CMA NO.1802 OF 2017
25.02.2021
https://www.mhc.tn.gov.in/judis/
