Madras High Court
The New India Assurance Co. Ltd vs S. Ramkumar on 23 June, 2021
CMA No.836 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.06.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
CMA No.836 of 2015
and
MP No.1 of 2015
The New India Assurance Co. Ltd.,
No.45, Moore Street,
Chennai – 1. ... Appellant
Versus
1. S. Ramkumar
2. R. Uma
3. K.Ramanathan ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act against the judgment and decree made in MACTOP No.927
of 2011 on the file of the Motor Accidents Claims Tribunal (III Judge,
Court of Small Causes), Chennai, dated 20.01.2015.
For Appellant : Mr.M.Krishnamoorthy
For Respondents : Mr.Ravichandran Sundaresan for R3
R1 & R2 - Served - No appearance
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CMA No.836 of 2015
JUDGMENT
(Heard Video Conference)
This appeal has been filed by the Insurance Company challenging
its liability to pay the compensation under the impugned award dated
20.01.2015 passed by the Motor Accidents Claims Tribunal, III Court of
Small Causes, Chennai in MCOP No. 927 of 2011.
2. The Motor Accident Claims Tribunal, III Court of Small Causes,
Chennai under the impugned award directed the respondents to pay the
respondents / claimants a total compensation of Rs.4,58,200/- together
with interest and costs as detailed hereunder :
Heads Amount awarded
by the Tribunal
(Rs.)
Pecuniary loss 3,43,200
Rs.3,300/- x 1/3rd x 12 x 13
Loss of love and affection 1,00,000
Funeral expenses 15,000
Total 4,58,200
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CMA No.836 of 2015
3. Heard Mr. M.Krishnamoorthy, learned counsel for the appellant
/ Insurance Company and Mr.Ravichandran Sundaresan for M/s.A.
Subramani, learned counsel for the R3.
4. This Court has perused the materials and evidence available on
record before the Tribunal.
5. The appellant / Insurance Company has challenged the
impugned award on the ground that despite the fact that the deceased
himself was a tortfeasor, the Tribunal has awarded a compensation to the
claimants who are his dependants.
6. The learned counsel for the appellant / Insurance Company drew
the attention of this Court to the pleadings in the claim petition and
pointed out that even according to the claimants, the two wheeler in
which the deceased was a rider dashed against the buffalo and due to the
said collision, he fell down from the motor cycle and as a result of the
injuries, he died subsequently and therefore, the deceased himself being a
tortfeasor, the appellant / Insurance Company is not liable to pay the
compensation.
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CMA No.836 of 2015
7. The learned counsel for the appellant / Insurance Company also
drew the attention of this Court to the following authorities in support of
his submissions :
1) Ramkhiladi and another versus United India
Insurance Company and another reported in 2020 2 SCC 550
2) National Insurance Co. Ltd., Puducherry vs. Rani
and others reported in 2020 (1) TNMAC 593
8.Relying upon the aforesaid authorities, the learned counsel for
the appellant / Insurance Company would submit that it is settled law
that as per Section 147 of the Motor Vehicles Act, 1988 even if the claim
filed under Section 163A, the appellant /Insurance Company is not liable
to compensate, if the deceased himself was a tortfeasor. Therefore,
according to him, the Tribunal has erroneously passed the impugned
award mulcting the liability on the appellant / Insurance Company.
9. The notice in this appeal has been duly served on the claimants
who are respondents nos.1 and 2 herein and their names have been
printed in the cause list and despite the same, there is no representation
on their side.
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CMA No.836 of 2015
10. However, the learned counsel for the third respondent, who is
the owner of the motor cycle in which the deceased was traveling drew
the attention of this Court to the discussion made by the Tribunal in
paragraph No.8, wherein it has been observed that PW2, an eye witness
to the accident had deposed that the motor cycle in which the deceased
was the rider while trying to over take an auto hit against a bullock and
fell down which resulted in his death. According to him, the deceased
was not a tortfeasor and hence, the appellant Insurance Company is
liable to pay the compensation as awarded by the Tribunal.
11. As seen from the impugned award, the third respondent has
remained ex-parte before the Tribunal. Therefore, this Court is of the
considered view that the 3rd respondent has no legs to stand before this
Court as no evidence either oral or documentary has been produced by
him before the Tribunal. Further, it is made clear from the claimants own
pleadings as found in the claim petition that there was no involvement of
any other vehicle and that the deceased as a rider of the motor cycle had
fallen down from his vehicle, which resulted in his death as he had
dashed against a Buffalo and not against any other vehicle. The
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CMA No.836 of 2015
Tribunal has therefore mis-appreciated the evidence available on record
and has mis-directed itself by mulcting the liability on the appellant /
Insurance Company.
12. It is settled law as per the aforesaid decisions relied upon by
the learned counsel for the appellant that the Insurance Company under
Section 147 of the Motor Vehicles Act, 1988 is not liable to compensate
if the deceased is himself a tortfeasor. In view of the settled law and in
view of the fact that the deceased was himself a tortfeasor, as seen from
the claim petition as well as the deposition of Mr.Elango, Sub Inspector
of Police (RW1) and the copy of the final report of the Police (Ex.R1).
Accordingly, the grounds raised by the appellant in this appeal
questioning their liability has to be accepted by this Court.
13. For the foregoing reasons, the impugned award dated
20.01.2015 passed by the Tribunal in MCOP No.927 of 2011 is hereby
set aside as against the appellant / Insurance Company and the Civil
Miscellaneous Appeal is allowed. No costs. Consequently, connected
miscellaneous petition is closed.
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CMA No.836 of 2015
14. The Tribunal is directed to return the amount deposited by the
appellant / Insurance Company on filing of an appropriate application.
23.06.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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To
1.The III Judge,
Court of Small Causes,
Motor Accidents Claims Tribunal
Chennai.
2. The Section Officer,
V.R. Section
High Court of Madras, Chennai - 104.
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CMA No.836 of 2015
ABDUL QUDDHOSE, J.
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CMA No.836 of 2015
23.06.2021
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