Madras High Court
The New India Assurance Company ... vs Rajeswari on 28 June, 2021
C.M.A.No.1681 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2021
CORAM:
THE HONOURABLE TMT.JUSTICE S.KANNAMMAL
C.M.A.No.1681 of 2020
and
C.M.P.Nos.12363 of 2020 & 446 of 2021
The New India Assurance Company Limited,
Divisional Office,
No.179, Mochi Building, 2nd Floor,
J.N.Street, Puducherry. .. Appellant
Vs.
1.Rajeswari
2.Annadurai
3.Arulveeramanikandan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
04.02.2019 made in M.C.O.P.No.44 of 2018 on the file of the Motor
Accidents Claims Tribunal, III Additional District Court, Kallakurichi.
For Appellant : Mr.S.Dhakshnamoorthy
For RR 1 & 2 : Mr.N.Manokaran
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1681 of 2020
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid mode”.)
This Civil Miscellaneous Appeal has been filed to set aside the award
dated 04.02.2019 made in M.C.O.P.No.44 of 2018 on the file of the Motor
Accidents Claims Tribunal, III Additional District Court, Kallakurichi.
2.The appellant is the 2nd respondent in M.C.O.P.No.44 of 2018 on the
file of the Motor Accidents Claims Tribunal, III Additional District Court,
Kallakurichi. The respondents 1 & 2 filed the said claim petition claiming a
sum of Rs.20,00,000/- as compensation for the death of their son viz.,
Vignesh, who died in the accident that took place on 24.08.2017.
3.According to respondents 1 & 2, on 24.08.2017 at about 07.00 hours,
while the deceased Vignesh was riding the motorcycle bearing Registration
No.PY 01 CP 2151 from Chennai to Tirukoilur on the Madapattu – Tirukoilur
Road near Hytharapakkam Pudur Village, due to unexpected Speed Breaker,
he lost control of the motorcycle, fell down and sustained grievous injuries all
over his body. After the accident, he was taken to the Government Hospital,
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1681 of 2020
Tirukoilur, where he died. Therefore, the respondents 1 & 2, being the
parents of the deceased Vignesh, filed the said claim petition against the 3 rd
respondent and appellant-Insurance Company, being the owner and insurer of
the motorcycle respectively.
4.The 3rd respondent-owner of the motorcycle remained exparte before
the Tribunal.
5.The appellant-Insurance Company, insurer of the motorcycle filed
counter statement and denied all the averments made by the respondents 1 to
2. The appellant submitted that the claim petition is not maintainable under
Section 166(1) of the Motor Vehicles Act, as the accident has occurred only
due to the negligence of the deceased, who drove the motorcycle in a rash and
negligent manner without noticing the speed breaker, fell down, sustained
injuries and died. The appellant denied that the 3 rd respondent's motorcycle
was insured with them on the date of accident. The motorcycle belonging to
3rd respondent was not having valid Registration Certificate and valid
Insurance Policy on the date of accident. The appellant denied the age,
avocation and income of the deceased. In any event, the quantum of
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1681 of 2020
compensation claimed by the respondents 1 & 2 are highly excessive and
prayed for dismissal of the claim petition.
6.Before the Tribunal, the 2nd respondent examined himself as P.W.1
and 8 documents were marked as Exs.P1 to P8. The appellant-Insurance
Company examined one Kavitha as R.W.1 and marked 2 documents as
Exs.R1 & R2.
7.The Tribunal, considering the pleadings, oral and documentary
evidence, fixed 35% negligence on the part of the deceased, awarded a sum
of Rs.9,43,080/- and directed the appellant to pay a sum of Rs.6,13,000/-,
being 65% of the award amount as compensation to the respondents 1 & 2.
8.To set aside the said award dated 04.02.2019 made in M.C.O.P.No.44
of 2018, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company
contended that the deceased was a tortfeasor and the claim petition made for
the death of tortfeasor is unsustainable under the law. The deceased could not
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1681 of 2020
be treated as 'Third Party' as he steps into the shoes of the owner of the
vehicle when he drives the vehicle as a borrower. The Tribunal failed to
appreciate that a tortfeasor or his legal representatives cannot file a claim
petition for the compensation of his own tortious act resulting in injury or
death. He mainly contended that at the time of accident, the deceased was not
possessing valid driving license to drive the motorcycle. The Tribunal
considering the same, erroneously directed the appellant-Insurance Company
to pay the compensation to the respondents 1 & 2, which is erroneous and
prayed for setting aside the award passed by the Tribunal.
10.Per contra, the learned counsel appearing for the respondents 1 & 2
contended that the deceased drove the motorcycle at a moderate speed and the
accident has occurred due to unexpected speed breaker. The Tribunal
considering the fact that the accident has occurred due to the negligence on
the part of the deceased-rider of the motorcycle, rightly directed the
appellant-Insurance Company, being the insurer of the motorcycle to pay the
compensation to the respondents 1 & 2. The Tribunal erroneously fixed 35%
negligence on the part of the deceased and prayed for dismissal of the appeal.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1681 of 2020
11.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the respondents 1 & 2 and perused the entire
materials on record.
12.The present appeal is filed against the award of the Tribunal
directing the appellant to pay the compensation. The appellant has raised
various grounds with regard to liability. At the time of arguments, the learned
counsel appearing for the appellant mainly contended that deceased-rider of
the motorcycle, who is the son of the respondents 1 & 2 did not possess
driving license at the time of accident. The appellant proved the same by
examining official one Kavitha as R.W.1 and marking Ex.R2. The Tribunal
having held that the deceased-rider of the motorcycle did not possess driving
license, erroneously fastened the liability on the appellant and fixed 20%
contributory negligence on the part of the deceased following the Division
Bench judgment of this Court reported in 2018 (2) TNMAC 168 (DB),
[National Insurance Company Limited and others Vs. Thangadurai and
others] and 15% negligence on the part of the deceased following the
judgment of this Court reported in 2017 (1) TNMAC 718, [Oriental
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1681 of 2020
Insurance Company Limited Vs. Indirani and others] for not wearing
helmet at the time of accident.
13.From the materials on record, it is seen that R.W.1 has admitted in
her chief examination that the deceased did not possess driving license to ride
the motorcycle and marked Ex.R2/Form AIR to that effect. The respondents 1
& 2 failed to disprove the evidence of R.W.1 by marking the driving license
of the deceased. Considering the admission of R.W.1 as well as Ex.R2, the
Tribunal held that the deceased did not possess driving license at the time of
accident. Having held so, the Tribunal erroneously directed the appellant to
pay the compensation. The said finding of the Tribunal is erroneous. The
Hon'ble Apex Court in the judgment reported in AIR 2020 SC 4453, [Beli
Ram Vs. Rajinder Kumar], has held that when the rider/driver of the
offending vehicle did not possess driving license to drive the vehicle or failed
to renew the driving license, the Insurance Company is not liable to pay
compensation to the claimants. The ratio in the judgment of the Hon'ble Apex
Court referred to above is squarely applicable to the facts of the present case.
In view of the same, the award of the Tribunal fastening liability on the
appellant is liable to be set aside and it is hereby set aside. Only the 3rd
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1681 of 2020
respondent-owner of motorcycle is liable to pay the compensation to
respondents 1 & 2.
14. In the result, this Civil Miscellaneous Appeal is allowed and a sum
of Rs.9,43,080/- awarded by the Tribunal as compensation to the respondents
1 & 2, along with interest and costs is confirmed. The 3rd respondent-owner
of the motorcycle is directed to deposit 65% of the award amount, i.e.,
Rs.6,13,000/- along with interest and costs, within a period of eight weeks
from the date of receipt of a copy of this judgment to the credit of
M.C.O.P.No.44 of 2018 on the file of the Motor Accidents Claims Tribunal,
III Additional District Court, Kallakurichi. on the file of the Motor Accidents
Claims Tribunal, III Additional District Court, Kallakurichi. On such deposit,
the respondents 1 & 2 are permitted to withdraw their respective share of the
award amount as per the ratio of apportionment fixed by the Tribunal, along
with proportionate interest and costs, after adjusting the amount, if any
already withdrawn, by filing necessary applications before the Tribunal. It is
made clear that if any amount is deposited by the appellant-Insurance
Company and the same was withdrawn by the respondents 1 & 2, the
appellant is not entitled to recover the same. The appellant-Insurance
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1681 of 2020
Company is permitted to withdraw the award amount, if any deposited to the
credit of M.C.O.P.No.44 of 2018 before the Tribunal. Consequently, the
connected Miscellaneous Petitions are closed. No costs.
28.06.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The III Additional District Judge,
Motor Accidents Claims Tribunal,
Kallakurichi.
2.The Section Officer,
VR Section,
High Court,
Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1681 of 2020
S.KANNAMMAL, J.
krk
C.M.A.No.1681 of 2020
28.06.2021
https://www.mhc.tn.gov.in/judis/
