Madras High Court
M/S. National Insurane Co.Ltd vs Jayanthi on 5 January, 2021
C.M.A.No.3325 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
C.M.A. No.3325 of 2009
AND M.P.No.1 of 2009
M/s. National Insurane Co.Ltd.,
157-158, Karamadai Road,
Mettupalayam .. Appellant
Vs.
1.Jayanthi
W/o. Govindaraj
2.K.K.Muthusamy ..
Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173
of Motor Vehicles Act, 1988, against the judgment and decree
dated 28.02.2008, made in M.C.O.P. No.1022 of 2004, on the file
of the Subordinate Judge, FTC No.IV,Coimbatore at Tiruppur.
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C.M.A.No.3325 of 2009
For Appellant : M/s. Sree Vidhya
For Respondents: M/s.B.Devagi Thangavel – R1
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 28.02.2008, made in M.C.O.P. No.1022 of 2004, on the file
of theSubordinate Judge, FTC No.IV,Coimbatore at Tiruppur.
2.The appellant is the 2nd respondent in M.C.O.P. No.1022 of
2004, on the file of theSubordinate Judge, FTC No.IV,Coimbatore
at Tiruppur. The 1st respondent/claimant filed the said claim
petition, claiming a sum of Rs.5,00,000/- as compensation for the
injuries sustained by the claimant in the accident that took place
on 04.04.2004.
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C.M.A.No.3325 of 2009
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C.M.A.No.3325 of 2009
3.According to the 1st respondent/claimant, on the date of
accident i.e on 04.04.2004 at about 14.45 hrs when the claimant
was travelling as a pillion rider in a moped bearing registration No.
TN39 W 0475 from south to north in the Kunnathur to Gobi main
road, near Palanigounder Velan Thottam, a jeep bearing
reg.No.MDE 4027 driven by its driver rashly and negligently and
dashed against the petitioner, causing injuries to her. Hence, the
1st respondent filed claim petition claiming compensation against
the appellant and the 2nd respondent as insurer and owner of the
vehicle.
4.The appellant-Insurance Company, filed counter statement
before the tribunal and denied the involvement of the alleged jeep
and the driver namely Karuppusamy in the alleged accident. Since
the said Karuppusamy has not been arayed as a party in the
MCOP, negligence on the part of the driver has not been
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C.M.A.No.3325 of 2009
established. The alleged accident had taken place only due to the
negligence on the part of the TVS 50 rider Govindaraj in having
lost control and balance of his vehicle in which apart from his 4
others have travelled. Hence the contributory negligence of the
rider of TVS moped is to be taken into consideration. The
appeallant-Insurance Company does not admit the age, avocation,
income and health condition of the claimant. The claim is highly
excessive and liable to be dismissed.
5.Before the Tribunal, the 1st respondent examined herself as
P.W.1, examined the doctor as P.W.2 and marked 7 documents as
Exs.A1 to A7. The appellant examined its official as R.W.1 and
marked copy of deposition filed in O.P.No. 1041/2004 as Ex.B1.
6.The Tribunal considering the pleadings, oral and
documentary evidence, held that as per FIR, the accident was due
to the rash and neligent act of the driver of the Jeep. The
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C.M.A.No.3325 of 2009
Insurance Company/appeallant herein has not chosen to examine
any direct eye witness in order to prove that the accident occurred
due to any rash and negligence on the part of the PW1/claimant or
that the driver of the van was not rash or neglignet. However, by
taking into account of the fact tht the rider of the moped has taken
his wife and three small children in the pillion of the TVS 50, which
can normally accommadate only two persons freely in the pillion,
the tribunal has fixed contirubutory negligence on the part of the
claimant at 25% and directed to pay the remaining 75%
compensation of Rs.3,85,465/- by the Insurance Company being
the insurer of the vehicle.
7.Challenging the liability fastened on them by the award
dated 28.02.2008, made in M.C.O.P. No.1022 of 2004, the
appellant - Insurance Company has come out with the present
appeal.
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C.M.A.No.3325 of 2009
8.The learned counsel appearing for the appellant-Insurance
Company contended that the tribunal erred in holding that driver
of the jeep was alone responsible for the occurrence without
noticing that the TVS moped was driven by one Govinaraj along
with his wife and three children and since he could not control his
vehilce, he had collided with the jeep. It is further contended that
the rider Govindaraj had no license and obiviously could not
control his moped. The Tribunal erred in fastening liability on the
Insurance Company and prayed for setting aside the award of the
Tribunal and allowing the appeal.
9.The learned counsel appearing for the 1st
respondent/claimant made his submissions in support of the award
passed by the Tribunal and prayed for dismissal of the appeal.
10.Heard learned counsel appearing for the appellant-
Insurance Company as well as the respondents and perused the
materials available on record.
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C.M.A.No.3325 of 2009
11. From the materials available on record, it is seen that it
is the contention of the appellant that the tribunal erred in holding
that driver of the jeep was alone responsible for the occurrence
without noticing that the TVS moped. But as per the FIR, the
accident was due to the rash and neligent act of the driver of the
Jeep.
12. Further, RW1 was examined before the tribunal and
based on the evidence given by RW1, a charge sheet has been
filed against the driver namely Karuppusamy and the said driver
has admitted the offence and paid the fines in C.C.No. 359/2004
before the Judicial Magistrate No.II, Gobichettipalayam. The
appellant/Insurance Company has not chosen to examine any
witness in order to prove that the accident occurred due to any
rash and negligence on the part of the PW1/claimant, thereby
causing accident. Therefore, in the absence of materials to
disprove the negligence on the part of the insured vehicle, the
tribunal has rightly fixed the contributory negligence at 75% on
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C.M.A.No.3325 of 2009
the part of the driver of the vehilce and at 25% on the part of the
claimant and directed to pay the said compensation by the
Insurance Company being insurer of the said vehicle. This Court
find no reason to interefere with the contributory negligence fixed
by the tribunal.
13. Insofar as compensation awarded by the tribunal is
concerned, the appellant/insurance company had not disputed the
compesation awarded by the tribunal. Therefore, nothing warrants
to interefere with the compensation awarded by the tribunal.
14. It is represented by the learned counsel appearing for the
appeallant/insurance company that entire amount of compensation
awarded by the tribunal has been deposited to the credit of
M.C.O.P. No.1022 of 2004.
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C.M.A.No.3325 of 2009
15. In view of the above, this Civil Miscellaneous Appeal is
dismissed and the compensation awarded by the Tribunal at
Rs.3,85,465/- together with interest at the rate of 7.5% per
annum is confirmed. The 1st respondent/claimant is permitted to
withdraw the award amount, after adjusting the amount, if any,
already withdrawn, by filing necessary applications before the
Tribunal. Consequently, connected Miscellaneous Petition is closed.
No costs.
05.01.2021
Index : Yes
ak
To
1.The Subordinate Judge, FTC No.IV,
Coimbatore at Tiruppur.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.No.3325 of 2009
D.KRISHNAKUMAR, J.
ak
C.M.A. No.3325 of 2009
05.01.2021
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