United India Insurance Company ... vs Malarkodi
2021 Latest Caselaw 1832 Mad

                                                                          C.M.A.No.3096 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 27.01.2021

                                                    CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                              C.M.A.No.3096 of 2019
                                                       and
                                              C.M.P.No.17146 of 2019


                   United India Insurance Company Ltd.
                   Represented by Branch Manager
                   G.P.M.street
                   Ambapuram, Gudiyatham
                   Vellore District.                                       .. Appellant

                                                         Vs.

                   1.Malarkodi
                   2.Sampath
                   3.Sarathkumar
                   4.Suresh
                   5.N.S.Saravanan
                   6.Mohana Sundaram                                     .. Respondents


                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                   Vehicles Act, 1988, against the judgment and decree dated 22.09.2017 made

                   in M.C.O.P.No.171 of 2010 on the file of Motor Accident Claims Tribunal,

                   Sub Court, Gudiyatham, Vellore District.

                   1/11


https://www.mhc.tn.gov.in/judis/
                                                                                 C.M.A.No.3096 of 2019

                                             For Appellant     : Mrs.R.Sreevidhya

                                             For R1 to R3      : Ms.Agalya

                                                                for Mr.K.A.Ravindran

                                                         JUDGMENT

This matter is heard through “Video-conferencing”.

This Civil Miscellaneous Appeal has been filed by the

appellant/Insurance Company against the award dated 22.09.2017 made in

M.C.O.P.No.171 of 2010 on the file of Motor Accident Claims Tribunal, Sub

Court, Gudiyatham, Vellore District.

2.The appellant is 2nd respondent/Insurance Company in

M.C.O.P.No.171 of 2010 on the file of Motor Accident Claims Tribunal, Sub

Court, Gudiyatham, Vellore District. The respondents 1 to 3 filed the said

claim petition claiming a sum of Rs.50,00,000/- as compensation for the

death of one Sathishkumar, who died in the accident that took place on

27.04.2010.

3.According to the respondents 1 to 3, on the date of accident i.e., on

27.04.2010 at 10.15 p.m., while the deceased was travelling as a pillion rider

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3096 of 2019

in a two wheeler near Periyapalayam Government Higher Secondary School,

the driver of the tractor belonging to the 4th respondent, which was coming in

the opposite direction, drove the same in a rash and negligent manner and the

rider of the two wheeler to avoid hitting the tractor, turned towards other

direction due to which, he was hit by another motorcycle and the driver of the

tractor could not control the vehicle, dashed against the two wheeler in which

the deceased travelled as pillion rider and caused the accident. In the

accident, the deceased sustained fatal injuries and died on the spot. Therefore,

the respondents 1 to 3 filed the above claim petition claiming compensation

against the 4th respondent, owner of the tractor, respondents 5 and 6, owner

and driver of the another motorcycle bearing Registration No.TN-20-AQ-

1798 respectively and the appellant/Insurance Company.

4.The 4th respondent, owner of the tractor, remained exparte before the

Tribunal.

5.The appellant/Insurance Company insurer of the tractor filed counter

statement denying the averments made in the claim petition and stated that

the driver of the tractor belonging to the 4th respondent was not responsible

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3096 of 2019

for the accident. The accident has occurred only due to negligent act of the

rider of the two wheeler in which the deceased travelled as pillion rider. The

respondents 1 to 3 did not disclose the registration number of the two

wheeler. The respondents 1 to 3 have stated that the rider of the two wheeler

to avoid collision with the tractor, turned the two wheeler and at that time, the

two wheeler was hit by another motorcycle bearing Registration No.TN-20-

AQ-1798 and the driver of the tractor, who was unable to turn the tractor, hit

the two wheeler in which the deceased travelled and thus, the accident

has occurred due to Act of God. The rider of the two wheeler bearing

Registration No.TN-20-AH-1901 viz., Sampath died. The said person did

not possess driving license and the said two wheeler was not insured

with the Insurance Company at the time of accident. The owner of the

two wheeler in which the deceased travelled as pillion rider and owner

and insurer of the another motorcycle bearing Registration No.TN-20-

AQ-1798 were not made as parties to the claim petition. The claim

petition is bad for non-joinder of necessary parties. Therefore, the

appellant/Insurance Company is not liable to pay any compensation to

the respondents 1 to 3. In any event, the compensation

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3096 of 2019

claimed by the respondents 1 to 3 is excessive and prayed for dismissal of

the claim petition.

6.Before the Tribunal, the 2nd respondent, father of the deceased,

examined himself as P.W.1 and one Shanmugam, eye-witness to the accident,

was examined as P.W.2 and seven documents were marked as Exs.P1 to P7.

The appellant/Insurance Company examined Mr.L.Sivakumar and

Mr.N.Abdul Rahman as R.W.1 and R.W.2 and marked two documents as

Exs.R1 and R2.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

the driver of the tractor belonging to the 4th respondent and directed the

appellant/Insurance Company being insurer of the said tractor to pay a sum of

Rs.10,97,000/- as compensation to the respondents 1 to 3 and dismissed the

claim petition as against the respondents 5 and 6, owner and driver of the

another motorcycle bearing Registration No.TN-20-AQ-1798.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3096 of 2019

8.Against the said award dated 22.09.2017 made in M.C.O.P.No.171 of

2010, the appellant/Insurance Company has come out with the present appeal

challenging the negligence fixed on the driver of the tractor.

9.The learned counsel appearing for the appellant/Insurance Company

contended that the accident has occurred, when the motorcycle bearing

Registration No.TN-20-AQ-1798, which was coming in the opposite

direction, dashed on the two wheeler bearing Registration No.TN-20-AH-

1901 in which the deceased Sathishkumar travelled as pillion rider and due to

the said impact, he fell down. The driver of the insured tractor, which was

coming in the opposite direction, drove behind the motorcycle bearing

Registration No.TN-20-AQ-1798 and ran over the head of the deceased

Sathishkumar. In such circumstances, the Tribunal ought to have fixed only

contributory negligence on the driver of the tractor, but erroneously fixed

entire negligence on the driver of the tractor. F.I.R. was registered against

both the driver of the tractor and the rider of the motorcycle bearing

Registration No.TN-20-AQ-1798. In any event, the Tribunal ought to have

fixed negligence on both the driver of the tractor as well as the rider of the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3096 of 2019

motorcycle bearing Registration No.TN-20-AQ-1798 and prayed for setting

aside the award of the Tribunal.

10.The learned counsel appearing for the respondents 1 to 3 made her

submissions in support of the award passed by the Tribunal and prayed for

dismissal of the appeal.

11.Heard the learned counsel appearing for the appellant/Insurance

Company as well as the learned counsel appearing for the respondents 1 to 3

and perused the entire materials available on record.

12.It is the case of the respondents 1 to 3 that when son of the

respondents 1 and 2 and brother of the 3rd respondent, the deceased

Sathishkumar travelled as the pillion rider in the two wheeler bearing

Registration No.TN-20-AH-1901, the driver of the tractor, which was coming

in the opposite direction, drove the same in a rash and negligent manner and

the rider of the two wheeler bearing Registration No.TN-20-AH-1901 to

avoid hitting the tractor, turned towards other direction and was hit by

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3096 of 2019

another motorcycle bearing Registration No.TN-20-AQ-1798, which was

coming in the opposite direction. Due to the said impact, the deceased fell

down. The driver of the tractor could not control the vehicle and ran over the

head of the deceased Sathishkumar. To substantiate their case, the

respondents 1 to 3 examined the eye-witness to the accident as P.W.2 and

marked the F.I.R., which was registered against the driver of the tractor as

Ex.P1. On the other hand, it is the case of the appellant that the rider of the

motorcycle bearing Registration No.TN-20-AQ-1798, which was coming in

the opposite direction, dashed against the two wheeler bearing Registration

No.TN-20-AH-1901, in which the deceased travelled as pillion rider and due

to the same, he fell down and the tractor ran over him. The appellant further

contended that the accident is an unexpected one and occurred only due to

negligence on the part of the rider of the motorcycle bearing Registration

No.TN-20-AQ-1798. The driver of the tractor is not responsible for the

accident. In support of their case, the appellant has not examined the driver of

the tractor or any other eye-witness. The appellant relied on F.I.R., which was

registered against both the driver of the tractor as well as the rider of the

motorcycle bearing Registration No.TN-20-AQ-1798. From the materials on

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3096 of 2019

record and evidence of P.W.2, it is seen that had the driver of the tractor was

careful while driving the tractor, he could have avoided running over the

deceased. The Tribunal considering the evidence of P.W.2 and in the absence

of any contra evidence on the part of the appellant/Insurance Company, held

that the accident occurred only due to rash and negligent driving by the driver

of the tractor belonging to the 4th respondent. There is no error in the said

finding of the Tribunal warranting interference by this Court.

13.In the result, the Civil Miscellaneous Appeal is dismissed and the

sum of Rs.10,97,000/- awarded by the Tribunal as compensation to the

respondents 1 to 3 along with interest and costs is confirmed. The

appellant/Insurance Company is directed to deposit the entire amount

awarded by the Tribunal along with interest and costs, less the amount

already deposited if any, within a period of six weeks from the date of receipt

of a copy of this judgment. On such deposit, the respondents 1 to 3 are

permitted to withdraw their respective share of the award amount as per the

apportionment fixed by the Tribunal, along with proportionate interest and

costs, less the amount if any, already withdrawn. This appeal is dismissed as

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3096 of 2019

against the respondents 5 and 6. Consequently, connected Miscellaneous

Petition is closed. No costs.

27.01.2021 Index : Yes / No

kj

To

1.The Subordinate Judge Motor Accidents Claims Tribunal Gudiyatham, Vellore District.

2.The Section Officer V.R.Section High Court, Chennai.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.3096 of 2019

V.M.VELUMANI, J.,

kj

C.M.A.No.3096 of 2019 and C.M.P.No.17146 of 2019

27.01.2021

https://www.mhc.tn.gov.in/judis/