Madras High Court
V.Janarthanan vs Subramani on 11 January, 2021
C.M.A.No.1773 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1773 of 2019
and C.M.P.Nos.5711 and 5712 of 2019
V.Janarthanan .. Appellant
Vs.
1.Subramani
2.The Oriental Insurance Company Ltd.
Pondicherry. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 27.03.2008
made in M.C.O.P.No.200 of 2003 on the file of Motor Accident Claims
Tribunal, I Additional Sub Court, Villupuram.
For Appellant : Mr.P.Satheesh Kumar
for Mr.P.Seshadri
For R2 : Mr.K.Vinod
for Ms.Elveera Ravindran
1/11
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1773 of 2019
JUDGMENT
This matter is heard through “Video-Conferencing”.
This Civil Miscellaneous Appeal has been filed by the owner of the
vehicle against the award dated 27.03.2008 made in M.C.O.P.No.200 of 2003
on the file of Motor Accident Claims Tribunal, I Additional Sub Court,
Villupuram.
2.The appellant is the 1st respondent in M.C.O.P.No.200 of 2003 on the
file of Motor Accident Claims Tribunal, I Additional Sub Court, Villupuram.
The 1st respondent filed the said claim petition claiming a sum of
Rs.2,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 09.04.2002.
3.According to the 1st respondent, on the date of accident i.e., on
09.04.2002, he travelled as a load man in a goods carrier lorry bearing
Registration No.TNG-5409 belonging to one Arivazhagan towards Gingee
along with one Baskar. At about 11.00 p.m., while the said Baskar was
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C.M.A.No.1773 of 2019
driving the lorry to deliver the goods at Gingee, it got breakdown due to some
mechanical fault, hence they stationed the break down lorry in the mud
portion of the road. At that time, a goods carrier lorry bearing Registration
No.PY-01-J-4345 belonging to the appellant driven by its driver in a rash and
negligent manner from Tindivanam to Gingee, dashed against the lorry in
which the 1st respondent was travelling and caused the accident. Due to the
said impact, the 1st respondent sustained grievous injuries all over the body
and hence, he filed the above said claim petition claiming compensation
against the appellant as owner and the 2nd respondent as insurer.
4.The 2nd respondent/Insurance Company being insurer of the goods
carrier lorry bearing Registration No.PY-01-J-4345 filed counter statement,
which was adopted by the appellant as per amended memo dated 29.04.2008,
denying the averments made in the claim petition and stated that the driver of
the lorry did not possess valid driving license at the time of accident. The
owner and insurer of the lorry bearing Registration No.TNG-5409 were not
made as parties to the claim petition. Hence, the claim petition is bad for
non-joinder of necessary parties. Therefore the 2nd respondent is not liable to
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C.M.A.No.1773 of 2019
pay any compensation to the 1st respondent. The 2nd respondent has also
denied the avocation, income and nature of injuries sustained by the 1st
respondent. In any event, the compensation claimed by the 1st respondent is
excessive and prayed for dismissal of the claim petition.
5.Before the Tribunal, the 1st respondent examined himself as P.W.1
and Dr.Bernardraj was examined as P.W.2 and nine documents were marked
as Exs.P1 to P9. The appellant and 2nd respondent did not let in any oral and
documentary evidence.
6.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 lorry bearing Registration No.PY-01-J-4345 belonging to
the appellant and directed the appellant to pay a sum of Rs.1,05,000/- as
compensation to the 1st respondent and dismissed the claim petition as
against the 2nd respondent/Insurance Company as the driver of the vehicle
belonging to the appellant did not possess driving license to drive the vehicle
at the time of accident.
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C.M.A.No.1773 of 2019
7.Against the said award dated 27.03.2008 made in M.C.O.P.No.200 of
2003, the appellant, owner of the lorry bearing Registration No.PY-01-J-4345
has come out with the present appeal.
8.The learned counsel appearing for the appellant contended that the
Tribunal failed to see that at the time of accident, the driver of the vehicle
belonging to the appellant had valid driving license. The Tribunal having held
that the policy issued by the 2nd respondent was in force at the time of
accident, erred in directing the appellant to pay the compensation. The
counsel for the 2nd respondent has filed vakalat on behalf of the appellant
also, but failed to file counter statement on behalf of the appellant and
advance arguments. The Tribunal in such circumstances, ought to have issued
notice to the appellant. Even in the F.I.R., the name of the driver of the
appellant's vehicle was not mentioned and prayed for allowing the appeal.
9.Per contra, the learned counsel appearing for the 2nd
respondent/Insurance Company contended that the driver of the vehicle did
not possess driving license at the time of accident. They have not proved that
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C.M.A.No.1773 of 2019
the driver was possessing driving license by letting in evidence. The Tribunal
considering the materials held that the driver of the vehicle belonging to the
appellant did not possess driving license and dismissed the claim petition as
against the 2nd respondent and directed the appellant to pay compensation.
There is no error in the said award and prayed for dismissal of the appeal.
10.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 2nd respondent/Insurance Company and
perused the entire materials on record.
11.In the present appeal, the issue to be decided is whether the Tribunal
is right in dismissing the claim petition as against the 2nd respondent and
directing the appellant to pay compensation.
12.From the materials on record, it is seen that it is the contention of
the 1st respondent that due to rash and negligent driving by the driver of the
vehicle belonging to the appellant, the accident has occurred and in the
accident, he sustained injuries. The Tribunal considering both the oral and
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C.M.A.No.1773 of 2019
documentary evidence let in before it, held that the accident has occurred due
to rash and negligent driving by the driver of the vehicle belonging to the
appellant. The Tribunal considering the fact that the driver of the offending
vehicle belonging to the appellant did not possess driving license, held that
the 2nd respondent/Insurance Company is not liable to pay compensation,
dismissed the claim petition as against the 2nd respondent and directed the
appellant to pay compensation. The learned counsel appearing for the
appellant contended that the driver of the offending vehicle had valid driving
license at the time of accident. The appellant along with the appeal filed
miscellaneous petition to grant leave to the petitioner/appellant to produce
driving license of the driver of the vehicle belonging to the appellant along
with xerox copy of the driving license, as the original driving license of the
driver of the appellant's vehicle was seized by the Police. The said C.M.P. is
numbered as C.M.P.No.5712 of 2019. According to the learned counsel for
the appellant, the appellant has entrusted the vakalat to the Advocate, who
appeared for the Insurance Company before the Tribunal. The Advocate filed
vakalat on behalf of the appellant, but failed to file counter statement on
behalf of the appellant. The appellant was set exparte.
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C.M.A.No.1773 of 2019
13. From the materials on record, it is seen that one Rathnasabapathy
filed vakalat for the appellant as well as 2nd respondent/Insurance Company.
The said Advocate has filed counter statement on behalf of the 2 nd
respondent/Insurance Company, but has not filed counter statement on behalf
of the appellant. The Tribunal has dismissed the claim petition as against the
2nd respondent/Insurance Company on the ground that the driver of the
offending vehicle belonging to the appellant did not possess driving license at
the time of accident and directed the appellant to pay compensation. From the
counter statement filed by the 2nd respondent/Insurance Company, it is seen
that the 2nd respondent has taken a stand that the driver of the appellant did
not possess driving license. The 2nd respondent did not examine its official
from R.T.O. and has not filed any document to prove their case that the driver
of the vehicle belonging to the appellant did not possess driving license. The
Tribunal without there being any evidence to show that the driver of the
vehicle belonging to the appellant did not possess driving license, dismissed
the claim petition as against the 2nd respondent/Insurance Company and
thereby committed error. Considering the above materials, especially no
evidence was let in on behalf of the 2nd respondent to prove that the driver of
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C.M.A.No.1773 of 2019
the vehicle did not possess driving license and the appellant having filed
xerox copy of the driving license along with the present appeal. The award
of the Tribunal dismissing the claim petition as against the 2nd
respondent/Insurance Company directing the appellant to pay compensation
is liable to be set aside and is hereby set aside. The 2nd respondent has not
denied that the vehicle belonging to the appellant was insured with them and
has not filed any counter affidavit in C.M.P.No.5712 of 2019. In view of the
same, the 2nd respondent/Insurance Company is liable to pay compensation to
the 1st respondent.
14.This Court takes note of the fact that the counsel for the 2nd
respondent/Insurance Company before the Tribunal has also filed vakalat for
the appellant, but failed to contest by filing counter statement. From the
counter statement filed by the 2nd respondent, it is seen that the 2nd respondent
has taken a stand adverse to the interest of the appellant. When such a stand is
taken, the counsel for the 2nd respondent ought not to have filed vakalat for
the appellant. This Court deprecates such a practice by the Advocate.
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C.M.A.No.1773 of 2019
15. In the result, the Civil Miscellaneous Appeal is allowed by setting
aside the portion of the award directing the appellant to pay compensation to
the 1st respondent. The compensation of Rs.1,05,000/- awarded by the
Tribunal along with interest and cost is confirmed. The 2nd
respondent/Insurance Company is directed to deposit the entire amount
awarded by the Tribunal along with interest and costs within a period of six
weeks from the date of receipt of a copy of this judgment. On such deposit,
the 1st respondent is permitted to withdraw the award amount along with
interest and costs, less the amount if any, already withdrawn. The appellant is
permitted to withdraw the amount lying in the deposit to the credit of
M.C.O.P.No.200 of 2003 on the file of Motor Accident Claims Tribunal, I
Additional Sub Court, Villupuram, if the entire award amount has already
been deposited by him. Consequently, connected C.M.P.Nos.5711 and 5712
of 2019 are closed. No costs.
11.01.2021
Index : Yes / No
Internet : Yes/ No
kj
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1773 of 2019
V.M.VELUMANI, J.,
kj
To
1.I Additional Subordinate Judge
Motor Accident Claims Tribunal
Villupuram.
2.The Section Officer
V.R.Section
High Court, Chennai.
C.M.A.No.1773 of 2019
and C.M.P.Nos.5711 and 5712 of 2019
11.01.2021
https://www.mhc.tn.gov.in/judis/
