Madras High Court
M/S. Cholamandalam Ms General vs M. Ravichandran on 18 January, 2021
C.M.A.No.1896 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. No.1896 of 2020
and C.M.P.No.14044 of 2020
M/s. Cholamandalam Ms General
Insurance Company Limited,
Travancore Bank Upstairs,
Lakshmi Vilas Bus Stop,
Permanur, Salem 7. .. Appellant
Vs.
1.M. Ravichandran
2.P. Venkatesan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 16.07.2019, made
in M.C.O.P. No.1641 of 2014, on the file of the Special Sub Court-II, (Motor
Accident Claims Tribunal), Salem.
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C.M.A.No.1896 of 2020
For Appellant : Mr.J. Michael Visuvasam
For Respondents : Mr.T.M.Karthikeyan (For 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 16.07.2019, made
in M.C.O.P. No.1641 of 2014, on the file of the Special Sub Court-II, (Motor
Accident Claims Tribunal), Salem.
2.The appellant is the 2nd respondent in M.C.O.P. No.1641 of 2014, on
the file of the Special Sub Court-II, (Motor Accident Claims Tribunal),
Salem. The 1st respondent/claimant filed the said claim petition, claiming a
sum of Rs.15,00,000/- as compensation for the injuries sustained by him in
the accident that took place on 05.07.2014.
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C.M.A.No.1896 of 2020
3.According to the 1st respondent, on the date of accident, he was
driving his TATA Ace bearing Registration No.TN-54-B-0914 on Salem-
Harur main road, following all the traffic rules and regulations. At about
16.30 hours, while proceeding near H.Thottampatty Bus stand, 2nd
respondent, driver-cum-owner of the Van bearing Registration No.TN-24-M-
7656 driving the same in opposite direction, in a rash and negligent manner,
dashed against the TATA Ace driven by the 1st respondent and caused the
accident. The accident occurred only due to rash and negligent driving by the
2nd respondent, driver-cum-owner of the Van. Hence, the 1st respondent filed
the claim petition claiming compensation against the 2nd respondent as owner-
cum-driver and appellant as insurer of the said vehicle.
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 accident is a collision of TATA Ace driven by
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C.M.A.No.1896 of 2020
the 1st respondent and Van driven by the 2nd respondent. The accident
occurred due to negligence of the 1st respondent, FIR and Charge sheet has
been filed against him. The 1st respondent has pleaded guilty in the Criminal
Court. The 1st respondent is admittedly a tort-feasor. The claim petition filed
by a 'tort feasor' under Section 166 of the Motor Vehicles Act is not
maintainable. The 1st respondent ought to have claimed compensation against
his own insurer and not against the insurer of the other vehicle. In any event,
the 1st respondent has to prove that he possessed valid driving license to ply
the vehicle at the time of accident. 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.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1,
examined eye witness as P.W.2 and marked 5 documents as Exs.P1 to P5. The
appellant examined Special Sub-Inspector of Police, Harur Police Station as
R.W.1, but did not let in any evidence. Two documents were marked as
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C.M.A.No.1896 of 2020
Exs.W1 and W2. The Disability Certificate issued by the Medical Board was
marked as Court Document viz., Ex.C1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by 2nd respondent, driver-cum-owner of the Van and directed the
appellant as insurer of the said vehicle to pay a sum of Rs.1,79,000/- 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
16.07.2019, made in M.C.O.P. No.1641 of 2014, the appellant - Insurance
Company has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company
contended that the accident occurred only due to rash and negligent driving
by the 1st respondent, FIR was registered only against the 1st respondent and
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C.M.A.No.1896 of 2020
charge sheet was laid against him. He pleaded guilty and paid fine. Hence, the
appellant is not liable to pay compensation for the negligence of tort-feasor.
The appellant examined the Special Sub-Inspector of Police as R.W.1, who
deposed that final report was filed against the 1st respondent. The Tribunal
failed to consider the evidence of R.W.1, FIR, final report and erroneously
directed the appellant to pay compensation. R.W.1 deposed based on Police
records and he cannot have any vested interest against the 1st respondent. The
Tribunal brushed aside the evidence of R.W.1. P.W.2 is a cooked up witness.
The Tribunal erroneously relied on the evidence of P.W.2 and held that
accident occurred only due to rash and negligent driving by 2 nd respondent,
driver-cum-owner of the Van. The amounts awarded by the Tribunal towards
loss of amenities and pain and suffering are exorbitant and unjustified. The
total compensation awarded by the Tribunal 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.
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C.M.A.No.1896 of 2020
11.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the learned counsel appearing for the 1 st
respondent/caveator and perused the materials available on record.
12.It is the contention of the 1st respondent that while he was driving
TATA Ace vehicle carefully, 2nd respondent, driver-cum-owner of the Van
drove the same in a rash and negligent manner and dashed against the TATA
Ace driven by the 1st respondent and caused accident. In the accident, the 1st
respondent sustained injuries and filed claim petition, claiming compensation
for the injuries sustained by him in the accident. The 1st respondent examined
himself as P.W.1 and marked FIR. He also examined P.W.2 – eye witness.
P.W.2 also deposed as that of averments in the claim petition and evidence of
P.W.1. On the other hand, it is the contention of the appellant that accident
occurred only due to rash and negligent driving by the 1st respondent and he
is the tort-feasor. FIR is registered against the 1st respondent, charge sheet laid
against him, he pleaded guilty and paid fine. To substantiate their contention,
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C.M.A.No.1896 of 2020
the appellant examined the Special Sub-Inspector of Police as R.W.1. R.W.1
deposed that he is not personally aware of the fact and he is giving evidence
based on the records. Even though R.W.1 has deposed that 1st respondent has
pleaded guilty in the criminal proceedings and paid fine, he has not produced
any materials to substantiate the same. The contention of the learned counsel
appearing for the appellant that R.W.1 has no vested interest and he deposed
based on Police records and Tribunal ought to have accepted the evidence of
R.W.1 is not acceptable. R.W.1 has not produced any materials to show that
1st respondent pleaded guilty and paid fine. R.W.1 has not produced judgment
in the criminal proceedings or receipt to prove the payment of fine by the 1st
respondent, before concerned Magistrate. The contents of FIR and criminal
proceedings are not sole basis for fixing negligence. In the present case, the
appellant has not examined the driver of the Van or any eye-witness to prove
their case. The contention of the learned counsel appearing for the appellant
that P.W.2 is a cooked up witness is not supported by any materials. The
Tribunal considering the above materials, has held that 2nd respondent, driver-
cum-owner of the Van is responsible for the accident and fixed liability on the
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C.M.A.No.1896 of 2020
appellant, as insurer of the Van. There is no error in the said finding of the
Tribunal, warranting interference by this Court.
13.As far as the quantum of compensation is concerned, the Tribunal
considering the nature of injuries, disability suffered, period of treatment
taken, age, avocation and income of the appellant, has awarded
compensation, which is not excessive. There is no error in the award of the
Tribunal warranting interference by this Court.
14.In the result, this Civil Miscellaneous Appeal is dismissed and the
amount awarded by the Tribunal at Rs.1,79,000 /- together with interest at the
rate of 7.5% per annum from the date of petition till the date of deposit,
excluding the period of dismissed for default from 10.02.2017 to 25.09.2018,
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 six weeks from the date of receipt of a copy of
this judgment, to the credit of M.C.O.P. No.1641 of 2014. On such deposit,
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C.M.A.No.1896 of 2020
the 1st respondent 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.
18.01.2021
Index : Yes
Speaking Order : Yes
gsa
To
1.The Special Subordinate Judge-II,
(Motor Accident Claims Tribunal),
Salem.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A.No.1896 of 2020
V.M.VELUMANI, J.,
gsa
C.M.A. No.1896 of 2020
18.01.2021
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