Madras High Court
Gopalsamy vs N.Raji on 7 January, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.1108 of 2011
Gopalsamy ...Appellant/Petitioner
Vs.
1.N.Raji
3.The Branch Manager,
New India Assurance Company Ltd.,
77, Police Station Road,
Sivakasi – 626 123. ... Respondents/ Respondents
PRAYER:Civil Miscellaneous Appeals are filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the award dated 05.01.2009 passed in
M.C.O.P.NO.44 of 2004 on the file of the Motor Accidents Claims Tribunal
(Subordinate Court), Sivakasi, insofar as relating to the quantum and dismissal
as against the second respondent are concerned, by allowing this Civil
Miscellaneous Appeal.
For Appellants : Mrs.P.Jessi Jeeva Priya
For Respondent : Mr.M.Asok Kumar
No.1
For Respondent : Mr.J.S.Murali
No.2 Standing Counsel
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2
JUDGMENT
This Civil Miscellaneous Appeal is directed as against the judgment and
award passed by the Motor Accidents Claims Tribunal (Sub Court), Sivakasi in
MCOP.No.44 of 2004, dated 05.01.2009.
2.The appellant is the claimant. He filed the claim petition seeking
compensation of Rs.3,00,000/-. According to him, on 04.01.2004, he was riding
his bicycle on Thiruthangal – Virudhunagar main road, towards North. When he
was nearing a limestone kiln, a motorcycle bearing Registration No.TN 67
R 2238, which was coming in the same direction in a rash and negligent
manner, hit against the bicycle form behind. In the impact, he was thrown away
from the bicycle and he sustained fracture and injuries. He was immediately
taken to Dr.Mookaiya for providing first aid and thereafter he was admitted in
PAMC Hospital at Madurai. Since the accident had occurred due to the
negligence of the rider of the motor cycle, the owner as well as the insurer are
liable to pay compensation.
3.The 2nd respondent insurance company resisted the claim petition,
disputing the manner of the accident, as stated by the claimant and also
submitted that the charge sheet was filed against one Arokiaraj and he also
pleaded guilty before the Criminal Court. The change of driver was done
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deliberately to make a false claim against the insurance company. So it is a
fraudulent arrangement made between the owner and the said Arokiaraj and the
claim is also excessive.
4.Before the Tribunal, the claimant examined two witnesses and marked
seven documents. On the side of the insurance company three witnesses were
examined and four documents were marked. On appreciation of evidence, the
tribunal came to the conclusion that the rider of the motorcycle caused the
accident and awarded a compensation of Rs.1,00,000/- [Rupees One Lakh],
directing the claimant to get the amount from the owner of the vehicle. The
liability of the insurance company was exonerated. Challenging the said
findings of the Tribunal, the present appeal has been filed.
5.Heard Mrs.P.Jessi Jeeva Priya, learned Counsel appearing for the
appellant and Mr.M.Ashok Kumar, learned Counsel appearing for the 1st
respondent and Mr.J.S.Murali, learned Counsel appearing for the 2nd respondent
and perused the materials available on record.
6.In the instant case, the appellant approached the Tribunal claiming
compensation on the ground that the rider of the motorcycle, bearing
Registration No.TN 67 R 2238 came in a rash and negligent manner and hit
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against his bicycle. In the claim petition itself, it is specifically stated that the
vehicle was driven by the 1st respondent namely, N.Raji.
7.It is seen that though a criminal case was registered against the 1st
respondent, the final report was filed against one Arockiaraj. He also pleaded
guilty and paid the fine amount before the Criminal Court. Though there is a
discrepancy with regard to the rider of the motorcycle, the Tribunal has
categorically found that the bicycle was hit by the rider of the motorcycle and
the rider of the motorcycle alone is responsible for the accident.
8.While deciding the liability, the Tribunal found that despite notice
issued by the insurance company under Ex.R2, the owner has not responded.
RW.1 the Assistant from the RTO office deposed that the 1st respondent herein
was not issued with any licence. It is seen that notwithstanding all positive
steps taken by the Insurance Company, no evidence was forthcoming from the
owner with regard to filing of criminal case against him and possession of valid
licence. Therefore, in my considered opinion that the insurer has discharged his
burden of proof and it is held that the vehicle was driven by a person, who has
no valid and effective driving licence.
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9.It is also not disputed that the claimant is a third party and even if there
is any violation of the policy conditions, the insurance company is liable to
satisfy the award of the Tribunal and then recover from the owner of the
vehicle.
10.In the light of the above fact, while confirming the award of the
Tribunal, this Court directs the 2nd respondent insurance company, first to pay
the award amount and thereafter, recover it from the owner of the vehicle, by
adopting the mode suggested by the Honourable Supreme Court in the case of
Nanjappan Vs. Oriental Insurance Company Limited and Others, reported in
2003(1)L.W. 77.
11.With the above modification, the Civil Miscellaneous Appeal is partly
allowed. No costs. The 2nd respondent/ insurance company is directed to
deposit the entire award amount with accrued interests at the rate of 7.5% per
annum and within a period of eight weeks from the date of receipt of a copy of
this judgment, if not already deposited and on such deposit being made, the
claimant is permitted to withdraw the award amount.
Index : Yes/No 07.01.2021
Internet : Yes/No
dsk
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To
1.The Judge,
Motor Accidents Claims Tribunal (Subordinate Court),
Sivakasi.
2.The Branch Manager,
New India Assurance Company Ltd.,
77, Police Station Road,
Sivakasi – 626 123.
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K.KALYANASUNDARAM, J.
dsk
C.M.A(MD)No.1108 of 2011
07.01.2021
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