Madras High Court

Shriram General Insurance Co. Ltd vs Pachiyappan on 29 January, 2021

                                                                            C.M.A.No.17 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 29.01.2021

                                                         CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                C.M.A. No.17 of 2021
                                              and C.M.P.No.124 of 2021

                   Shriram General Insurance Co. Ltd.,
                   No.5-F, 1st Floor, Front Portion,
                   Sachin Plaza, Reddiyar Block, No.1,
                   Salem 636 016.                                                   .. Appellant

                                                           Vs.

                   1.Pachiyappan

                   2.Ranganayaki                                                 .. Respondents

                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                   Vehicles Act, 1988, against the judgment and decree dated 03.12.2018, made
                   in M.C.O.P. No.109 of 2017, on the file of the Special District Court, (Motor
                   Accident Claims Tribunal), Dharmapuri.

                                         For Appellant     : Mr.S.Dhakshnamoorthy

                                         For Respondents : Mr.Amar D.Pandiya (For R1)

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https://www.mhc.tn.gov.in/judis/
                                                                                C.M.A.No.17 of 2021




                                                  JUDGMENT

The matter is heard through "Video Conferencing".

This Civil Miscellaneous Appeal has been filed by the appellant-

Insurance Company against the judgment and decree dated 03.12.2018, made

in M.C.O.P. No.109 of 2017, on the file of the Special District Court, (Motor

Accident Claims Tribunal), Dharmapuri.

2.The appellant is the 2nd respondent in M.C.O.P. No.109 of 2017, on

the file of the Special District Court, (Motor Accident Claims Tribunal),

Dharmapuri. The 1st respondent/claimant filed the said claim petition,

claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained

by him in the accident that took place on 30.09.2012.

3.According to the 1st respondent, on the date of accident, when he was

in his vulcanizing shop at old Dharmapuri, a Lorry bearing Registration

No.TN-29-F-0625, belonging to the 2nd respondent was brought to the

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vulcanizing shop by its driver to apply powder to the back wheel tyre. While

the 1st respondent was removing the wheel from the Lorry parked in front of

the shop, the tyre burst and outer frame of the wheel hit the 1st respondent

with heavy force and he sustained grievous injuries in both the legs. The

accident occurred due to the improper maintenance of the Lorry by the 2nd

respondent, owner and hence, 1st respondent filed claim petition against the

2nd respondent, as owner and appellant, as insurer of the said Lorry.

4.The 2nd respondent remained exparte before the Tribunal.

5.The appellant-Insurance Company, filed counter statement and

denied all the averments made by the 1st respondent in the claim petition.

According to the appellant, the driver of the Lorry belonging to the 2nd

respondent did not possess valid driving license. No FIR was registered

against the driver of the Lorry. The 1st respondent also has to prove his age,

avocation and income, manner of accident, injuries sustained and treatment

taken to claim compensation and prayed for dismissal of the claim petition.

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6.Before the Tribunal, the 1st respondent examined himself as P.W.1,

examined eye witness as P.W.2 and marked 11 documents as Exs.P1 to P11.

The appellant examined one Mohanraj as R.W.1 and marked one document as

Ex.R1.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred only due to negligence of the driver

and owner of the Lorry and directed the appellant as insurer of the said

vehicle to pay a sum of Rs.6,34,200/- as compensation to the 1st respondent.

8.Challenging the liability fastened on them and questioning the

quantum of compensation granted by the Tribunal in the award dated

03.12.2018, made in M.C.O.P. No.109 of 2017, the appellant - Insurance

Company has come out with the present appeal.

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

contended that the Tribunal failed to appreciate the fact that lodging FIR is

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vital in a claim for compensation under Motor Vehicles Act (hereinafter,

referred to as, 'the Act'). The accident is not a motor vehicles accident and

injury sustained by the 1st respondent/claimant was not due to use of motor

vehicle. A claim petition filed under Section 166 of the Act is maintainable

only when accident has occurred by use of motor vehicle contemplated under

Section 165 (1) of the Act. In any event, the compensation granted by the

Tribunal by adopting multiplier method without there being any functional

disability or loss of earning capacity is excessive and prayed for setting aside

the award of the Tribunal.

10.The learned counsel appearing for the 1st respondent made his

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 1 st respondent and

perused the materials available on record.

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12.It is the case of the 1st respondent that he is the Proprietor of M.P.

Vulcanizing workshop. The driver of the Lorry belonging to the 2nd

respondent brought the Lorry to his workshop for powdering the back wheel

of the Lorry. While the 1st respondent was removing the back wheel of the

Lorry, due to poor maintenance of the said wheel, the tyre burst and outer ring

of the said wheel hit the 1st respondent and 1st respondent sustained grievous

injuries in his both legs. Both the bones fractured and he has taken treatment

as in-patient and underwent surgeries. He filed the claim petition claiming

compensation for the injuries sustained. To prove his case, he examined

himself as P.W.1, examined one Narayanan who was sitting in a shop near to

Vulcanizing shop of the 1st respondent, as P.W.2 and marked CSR issued by

the Police as Ex.C1, based on the complaint given by him. On the contrary, it

is the case of the appellant that accident has not occurred due to the

involvement of Lorry. FIR was not registered and non-registration of FIR is

fatal to the claim petition. The alleged accident is not one as contemplated

under Section 165 (1) of the act.

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13.From the materials on record, it is seen that the accident has

occurred while the 1st respondent was removing the back wheel of the Lorry

belonging to the 2nd respondent for powdering. The 1st respondent has proved

the same by examining himself as P.W.1 and examining eye witness as P.W.2.

The appellant has not examined the driver of the Lorry or any independent

eye witness to substantiate their case that accident has not occurred due to the

use of Lorry. The contention of the learned counsel appearing for the

appellant that non-registration of FIR is fatal to the claim petition is not

acceptable. Even without FIR, the Tribunal can consider the materials placed

before it to come to the conclusion whether the accident has occurred or not

and fix the negligence. In the present case, it is the case of the 1st respondent

that in the accident, he suffered injuries and has taken treatment as in-patient

in the Kurunji Hospital, Salem from 30.09.2012 to 09.10.2012 and under

surgeries. He has given complaint on 30.09.2012 to the Police. The Police did

not register the FIR. Ex.P1 – CSR copy shows that the complaint has been

lodged to the concerned Police by the 1st respondent. The Tribunal

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considering the judgment of this Court dated 15.10.2012 made in

C.M.A.Nos.4107 of 2008 and 2227 of 2009 [Anbalagan and others Vs.

V.Sankar and another], injuries and treatment taken by the 1st respondent and

failure on the part of the Police in not registering the complaint on receiving

information from the Hospital, receiving the complaint given by the 1 st

respondent, no specific plea is taken by the appellant in counter and nothing

favourable was elucidated in the cross examination of P.W.1, held as follows:

“8........even though, FIR was not registered on the

strength of Ex.P1 and the oral evidence supported by Ex.P2

wound certificate, this Tribunal could find that the accident

occurred involving the tarus Lorry TN 29 F 0625.”

14.As far as the contention of the learned counsel appearing for the

appellant that accident has not occurred due to use of Lorry belonging to the

2nd respondent as contemplated under Section 165 (1) of the Act is concerned,

the term mentioned under Section 165 (1) is, “accident arising out of use of

motor vehicles”. The term 'use of motor vehicles' is mentioned under Section

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165 (1) of the Act does not mean that only for the accident that occurred

when the vehicle was in motion, the claim petition can be filed under the

provisions of the Motor Vehicles Act. The claim petition is maintainable for

the accident that occurred when the vehicle was stationary. In the present

case, the 1st respondent has proved both by oral and documentary evidence

that he suffered injuries in the accident that occurred by the use of Lorry

belonging to the 2nd respondent. The Tribunal considering the judgment of

this Court dated 30.08.2018 made in C.M.A.No.1544 of 2018 [New India

Assurance Company Vs. Valli @ Nagavalli and others] and the judgment of

the Punjab and Haryana High Court dated 09.01.2014 made in FAO No.657

of 1004 [National Insurance Company Ltd., Vs. Mithu Singh Alias Chet

Singh and others], held that merely because the Lorry was kept stationary, it

cannot be held that 1st respondent cannot maintain the claim petition. The

claim petition filed by the 1st respondent is maintainable and there is no error

in the award of the Tribunal to be interfered with.