Madras High Court
The Manager vs Tmt.Chinnaponu on 4 January, 2021
C.M.A.No.3312 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
C.M.A. No.3312 of 2009
AND M.P.No.1 of 2010
The Manager,
The New India Assurance Co.Ltd,
No.69/70, Nadu Street,
Kancheepuram District. .. Appellant
Vs.
1. Tmt.Chinnaponu
W/o. Muniyandi
2.Minor.Yuvaraj
S/o.Muniyandi
3.Minor.Ruthra,
D/o. Muniyandi
(Minors represented by their mother/guardian
Chinnaponnu)
4.Dakshnamoorthy,
S/o. Munusamy Naicker
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C.M.A.No.3312 of 2009
5.A.Ameer,
BSA Ibu Traders
No.18/A, Pattala Street,
Kancheepuram Taluk & District. ..Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173
of Motor Vehicles Act, 1988, against the judgment and decree
dated 28.10.2008, made in M.C.O.P. No.294 of 2005, on the file of
the Subordinate Judge, Kancheepuram.
For Appellant : M/s.J.Chandran
For Respondents: Mr.Richard Suresh – R1 to R3
Mr.K.Goviganesan - R4
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 28.10.2008, made in M.C.O.P. No.294 of 2005, on the file
of the Subordinate Judge, Kancheepuram.
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C.M.A.No.3312 of 2009
2.The appellant is the 2nd respondent in M.C.O.P. No.294 of
2005, on the file of the Subordinate Judge, Kancheepuram. The
respondents 1 to 4 have filed the said claim petition, claiming a
sum of Rs.15,00,000/- as compensation for the death occurred in
the road accident that took place on 02.05.2005.
3.According to the respondents 1 to 4/claimants, on
02.05.2005 at about 8.30 hours when the driver of the auto
rickshaw bearing Reg.No.TN21 F 1033 proceeding with a poultry
load at a place near Annamalai Naicker pumpset, Kalakattur, a
driver of the auto drove the auto in a rash and negligent manner
and dashed against the tamrind tree. Due to the accident, the
pillion rider and load man Muniandi sustained fatal injuries and
died on the spot. Being the legal heirs of the deceased Muniandi,
the claimants/respondents 1 to 4 herein have filed a claim petition
before the tribunal, claiming compensation against the owner of
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C.M.A.No.3312 of 2009
the vehicle and the Insurance Company for a sum of
Rs.15,00,000/- .
4.The appellant-Insurance Company, filed counter statement
before the tribunal and denied the subsistences of vehicular
records namely Driving License, permit, FC and RC. It is further
stated that the alleged vehicle is a goods career auto, therefore
the passengers are not supposed to travel in the said vehicle,
therefore, they are not liable to pay compensation as claimed by
the claimants. The Insurance Company also does not admit the
age, avocation, income of the deceased.
5.Before the Tribunal, the 1st respondent examined herself as
P.W.1, the eyewitnesses were examined as PW2 & PW3 and
marked documents ExP1 to P5. The appellant examined its official
as R.W.1 and no documents were marked.
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C.M.A.No.3312 of 2009
6.The Tribunal after considering the pleadings, oral and
documentary evidence, fixed liability on the driver of the alleged
vehicle and awarded compensation of Rs.4,30,000/- under
various heads together with interest at 7.5% per annum payable
by the Insurance Company being the insurer of the vehicle.
7.Challenging the liability fastened on them by the award
dated 28.10.2008, made in M.C.O.P. No.294 of 2005, the appellant
- Insurance Company has come out with the present appeal.
8. The learned counsel for the appellant/Insurance Company
that the deceased Muniandi had travelled in a Mini Auto, a goods
vehicle. There is no coverage for the passenger and in the
registration certificate also it has been specifically mentioned that
the seating capacity is one including driver and there is no
provision for safety travelling of passenger. The learned counsel
further submitted that the tribunal considering the travelling of the
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C.M.A.No.3312 of 2009
deceased as a passenger in the absence of proof of employment
neigher as a load man nor in the capacity of pillion rider, ought not
to have held that the insurance company is liable to pay
compensation.
9. On the other hand the learned counsel for the respondents
1 to 4/claimants submitted that though the appellant denied the
policy of insurance and the validity of the vehicle travelled by the
deceased bearing Reg.No. TN21 F 1033, the Insurance Company
has not adduced any evidence or produced any document to prove
the said contention. Further RW1 in his evidence has admitted that
as per Ex.A5- copy of the policy, a premium has been paid to the
driver and the other person. He has further stated that as per the
said policy, three persons including driver are covered under the
policy. Based on the aforesaid validity of the policy issued by the
Insurance Company, the tribunal has fixed the liability on the
insurance company and awarded compesation to the claimants,
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C.M.A.No.3312 of 2009
therefore, the compensation awarded by the tribunal is fair and
does not require any modification and the appeal filed bythe
Insurance Company is liable to be dismissed.
10.Heard learned counsel appearing for the appellant-
Insurance Company as well as the respondents and perused the
materials available on record.
11. From the materials available on record, it is seen that the
main contention of the appellant is denial of insurance policy and
the validity of the alleged vehicle bearing Registration No.TN21 F
1033, but to prove the same, the appellant had not produced any
evidence or documents before the tribunal as well as this Court.
Further contention of the appellant is that the deceased Muniandi
was a gratious passenger and the policy that exists at the time of
the accident shall not cover the gratitious passenger and therefore,
the claimants are not entitled to get any compensation. But, it is
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C.M.A.No.3312 of 2009
seen from the records, RW1 admitted before the tribunal that
alleged vehicle bearing Reg.No. TN21F 1033 had valid insurance
policy covering the deceased Muniandi, the load man. The
evidence of RW1 before the tribunal is extracted below;
“tpgj;Jf;Fz;lhd thfdk; v';fs; epWtdj;jpy;
tpgj;J fhyj;jpy; fhg;gPL bra;ag;gl;Ls;sJ./ v';fs;
fhg;gPL fHfj;jpy; tH';fg;gl;l fhg;gPL rhd;wpjHpd;
????????; efy; k.rh.M 5 mjpy; oiutUf;Fk; ,d;bdhU
ntiyahSf;Fk; gphpkpak; bgwg;gl;ljhf
Fwpg;gplg;gl;Ls;sJ/ k.rh.M 5 fhg;gPL go oiuth;
cl;gl 3 ngUf;F ftnu cz;L/ Mh;/rp/ g[j;jfj;jpy;
chpkk; kw;Wk; fhg;gPL xU egUf;F kl;Lk; vd;W
Fwpg;gplg;gl;oUe;jhYk; k/rh/M 5 fhg;gPL nghd;w
tH';f chpik cz;L/”
12. In view of the aforesaid evidence it is clear that the
vehicle involved in the accident bearing Reg.No. TN21F 1033 had a
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C.M.A.No.3312 of 2009
valid insurance policy covering the deceased Muniandi. Therefore
the contention raised by the learned counsel appearing for the
appellant denying the validity of the insurance policy cannot be
accepted and the same is liable to be rejected.
13. Considering the facts and circumstances and also
considering the fact that there no materials to disprove the validity
of the insurance policy, this Court with no hesitation concur the
findings of the tribunal in respect of fixing the liability on the part
of the appellant/insurance company.
14. Insofar as quantum of compensation is concerned, the
tribunal has rightly considered all the aspects in respect of fatal
accident and awarded a compensation of Rs.4,30,000/- together
with interest at 7.5% per annum by applying proper multiplier
method. This Court finds no reason to interfere with the
compensation awarded by the Tribunal, accordingly, the same is
confirmed.
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C.M.A.No.3312 of 2009
15. In the result, this Civil Miscellaneous Appeal is dismissed
and the compensation awarded by the Tribunal at Rs.4,30,000/-
together with interest at the rate of 7.5% per annum is confirmed.
The appellant-Insurance Company is directed to deposit the award
amount along with interest and costs, less the amount already
deposited, within a period of twelve weeks from the date of receipt
of a copy of this judgment, to the credit of M.C.O.P. No.294 of
2005. On such deposit, the respondents 1 to 4/claimants are
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.
04.01.2021
Index : Yes
ak
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C.M.A.No.3312 of 2009
D.KRISHNAKUMAR, J.
ak
To
1.The Subordinate Judge,
Kancheepuram.
2.The Section Officer,
V.R Section,
High Court, Madras.
C.M.A. No.3312 of 2009
04.01.2021
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