Madras High Court
The Branch Manager vs Rukmani on 5 March, 2021
C.M.A(MD)No.1608 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED 05.03.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.1608 of 2010
and
M.P(MD)No.1 of 2010
The Branch Manager
United India Insurance Company Limited,
Kumbakonam.
.. Appellant
vs.
1.Rukmani
2.Minor Sukasini
3.Minor Dhineshkumar
4.Herun Rasheed
(minor R3 and R3 are represented by
their mother, the first respondent)
...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988 against the Judgment and decree in MCOP No.564 of
2007 dated 10.03.2010 on the file of the Motor Accident Claims
Tribunal, Additional Subordinate Court, Kumbakonam.
1/8
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C.M.A(MD)No.1608 of 2010
For Appellant : Mr.J.S.Murali
For Respondents : No appearance
*****
JUDGMENT
This appeal is directed against the Judgment and award passed by
the Motor Accident Claims Tribunal, Additional Subordinate Court,
Kumbakonam in MCOP No.564 of 2007.
2.The appellant is the second respondent in the claim petition. The
claim petition was filed by the respondents 1 to 3 herein claiming
compensation of Rs.10,00,000/- for the death of the first claimant's
husband and the father of the claimants 2 and 3, namely, Rasu Mudaliar,
in an accident, which took place on 24.02.2007. According to the
claimants, on the said date, at 04.00 p.m, the deceased was travelling as
pillion rider in a two wheeler bearing registration No.TN-50-Y-2081 and
the same was driven by his friend Kumar. It is alleged that the said
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C.M.A(MD)No.1608 of 2010
Kumar drove the motorcycle in a high speed and applied sudden brake,
in which, the pillion rider, the said Rasu Mudaliar fell down and
sustained injuries. Immediately, he was carried to a hospital at
Velangaiman, where he was declared as brought dead. Since the first
respondent is the owner of the two wheeler and it got insured with the
appellant herein, both are liable to pay compensation.
3.The claim was resisted by the respondent by filing counter
stating that the deceased did not travel in the motorcycle bearing
registration No.TN-50-Y-2081. It is specifically stated that the said
vehicle was in the custody of the first respondent and it was not used
either by the said Kumar or the deceased Rasu Mudaliar. It is further
stated that the deceased was an employer of one Ismath Basha and he
travelled in his vehicle, as it was not insured, the vehicle of the first
respondent was wrongly introduced in this case.
4.Before the Tribunal, the first claimant gave evidence as P.W.1.
P.W.2 was examined as eyewitnesses to the incident and he has stated
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C.M.A(MD)No.1608 of 2010
that the deceased, at the relevant point of time, was a pillion rider in the
motorcycle bearing registration No.TN-50-Y-2081 and it was driven by
one Kumar. Since the vehicle was driven in a high speed, the deceased
had fallen down and succumbed to the injuries. The owner of the vehicle
Haroon Rasheed examined himself as R.W.1 and in his evidence, he has
categorically stated that the vehicle was never used by the said Kumar or
the deceased. That apart, R.W.2 and R.W.3 gave evidence corroborating
the evidence of R.W.1. However, the Tribunal, considering the fact that
the second respondent, the appellant herein, has not examined any
witness from the Regional Transport Office, came to the conclusion that
the vehicle was driven by the friend of the deceased Rasu Mudaliar, viz.,
Kumar and in the accident, the deceased died. After giving the said
finding, the Tribunal assessed the compensation at Rs.3,52,000/-.
5.Mr.J.S.Murali, learned counsel for the appellant contended that
the Tribunal has erred in coming to the conclusion that the vehicle was
involved in the accident and testimony of R.W.1 to R.W.3 was not
properly considered by the Tribunal.
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C.M.A(MD)No.1608 of 2010
6.When the matter was taken up for hearing on 01.03.2021, there
was no representation for the respondents and hence, the matter is posted
today under the caption for orders, but today also, none represented on
behalf of the respondents.
7.In the present case, it is not in dispute that the respondents 1 to 3
herein are the legal heirs of the deceased Rasu Mudaliar who died in a
motor vehicle accident on 24.02.2007. It is the case of the claimants that
the deceased travelled as pillion rider in the motorcycle bearing
registration No.TN-50-Y-2081, but it was contested by the owner as well
as the insurer stating that the said vehicle was not at all involved in the
accident. The claimants mainly relied on the evidence of P.W.2. Perusal
of his evidence would show that after the accident, he did not accompany
the deceased to the hospital nor he lodged the complaint. It is seen that
the First Information Report (Ex.P.1) was registered on the basis of the
complaint given by the first claimant Rukmani. P.W.2, in the cross
examination, admitted that he did not prefer the complaint.
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C.M.A(MD)No.1608 of 2010
8.In the claim petition, it is stated that the deceased was working as
Assistant in the rice mill owned by Ismath Batcha. R.Ws.1 to 3
consistently deposed that the deceased was an employee of the said
Ismath Batcha and he travelled in his Bajaj Scooter at the relevant point
of time and the deceased did not travel in the the motorcycle bearing
registration No.TN-50-Y-2081. The Tribunal without properly
appreciating the evidence of R.Ws.1 to 3 and the admission made by P.W.
2 in his cross examination, held that the said vehicle bearing registration
No.TN-50-Y-2081 was involved in the accident. So, I am of the
considered view the Tribunal ought to have disbelieved the evidence of
P.W.2 and held that the vehicle was introduced by the claimants to make
false claim against the appellant Insurance Company.
9.For the foregoing reasons, the finding of the Tribunal is liable to
be set aside. Accordingly, the same is set aside and the Civil
Miscellaneous Petition is allowed.
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C.M.A(MD)No.1608 of 2010
10.It is represented that the entire award amount has been
deposited before the Tribunal. Hence, the Tribunal is directed to return
the amount lying to the credit of the claim petition to the appellant
Insurance Company. No costs. Consequently, connected miscellaneous
petition is closed.
15.03.2021
Index:Yes/No
Internet:Yes/No
skn
To
1.The Motor Accident Claims Tribunal,
Additional Subordinate Court, Kumbakonam.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.1608 of 2010
K.KALYANASUNDARAM.,J
skn
JUDGMENT MADE IN
C.M.A(MD)No.1608 of 2010
and
M.P(MD)No.1 of 2010
05.03.2021
http://www.judis.nic.in
