Madras High Court
M/S National Insurance Company ... vs Kamsala ... First on 10 March, 2021
CMA No.3248 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 10.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
CMA.No.3248 of 2010and
M.P.No.1 of 2012
M/s National Insurance Company Ltd.,
III Floor, Anuradha Complex, 10,
Krishnagiri. ... Appellant/ II respondent
Vs.
1. Kamsala ... first respondent/ claimant
2. M. Udayakumar ... second respondent/ first
respondent
This Civil Miscellaneous Appeal has been filed under
Section 173 of the Motor Vehicles Act, 1988, against the decree and
judgment dated 08.06.2010 passed in M.C.O.P.No.157 of 2006 by the
Chief Judicial Magistrate, Namakkal.
For Appellant : Mr. S.Arunkumar
Page 1 of 9
https://www.mhc.tn.gov.in/judis/
CMA No.3248 of 2010
JUDGMENT
Aggrieved over the orders passed by the Tribunal, the
appellant/ insurance company has filed the present appeal.
2. The first respondent/claimant has filed a claim petition
before the Tribunal seeking compensation of Rs.4,00,000/- for the
injuries sustained by her in a road accident that took place on
14.11.2005.
3. The brief case of the claimant is as follows: On
14.11.2005, at about 12.30 p.m., while the claimant was standing by
the side of the road, near Moongilari at Keelkuppam-Uthankari Road,
the driver of a tempo van bearing registration No.TN-09-AA-8375
barked the van negligently and got down from the van to close the back
door of the van, at that time, some persons, who were inside the cabin
of the van touched the gear rod, thereby the van positioned to neutral
and moved front side of the road and dashed against the claimant, as a
result of which she sustained grievous injuries all over her body.
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CMA No.3248 of 2010
According to the claimant, the negligent act of the driver of van was the
cause of accident and since the first respondent/ owner of the vehicle
insured his van with the second respondent/ insurance company, both of
them are liable to pay compensation.
4. The claim petition was resisted by the insurance
company by filing counter affidavit.
5. Before Tribunal, on the side of the claimant, the claimant
and Dr. Sivakumar were examined as PW1 and PW2 and Ex.P1 to
Ex.P11 were marked. On the side of the respondents, one witness was
examined as RW1 and Ex.R1 and Ex.R2 were marked.
6. After analysing the evidence on record, the Tribunal has
awarded a sum of Rs.2,07,788/- under various heads, as extracted
hereunder.
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CMA No.3248 of 2010
Sl Heads Amount in
No Rs.
1 Permanent disability 55,000
2 Extra nourishment 10,000
3 Pain and sufferings 25,000
3 Transportation charges 5,000
4 Loss amennities 5,000
5 Loss of income during 6,000
treatment period
6 Medical bills 1,01,788
Total 2,07,788
Aggrieved over the award passed by the Tribunal, the insurance
company has filed the present appeal.
7. Despite sufficient opportunities given, notice was not
served to the respondents.
8. Heard the learned counsel for the appellant and I have
perused the materials on record.
9. The learned counsel appearing for the appellant/
insurance company submitted that as per the insurance policy, the
vehicle was covered only to carry the goods, but it was used to carry the
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CMA No.3248 of 2010
passengers, which is contrary to the permit, Registration Certificate and
also the insurance policy. He further submitted, without taking into
account the evidence of RW1 and the documents, the Tribunal has
erred in directing this appellant/insurance to pay compensation to the
claimant and hence, the award passed by the Tribunal warrants
interference by this court.
10. Now the point for determination is whether the
insurance company is liable to pay compensation to the claimant?
11. POINT
The only ground raised by the appellant/ insurance
company is that, they are not liable to pay compensation to the
claimant. The contention of the appellant is that the vehicle involved
on the date of accident was a tempo van and it was covered under the
policy to carry goods, but, it was used to carry the passengers, which is
the violation of policy condition and also contrary to the permit and the
Registration Certificate.
12. While discussing the point of negligence, after
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CMA No.3248 of 2010
analysing the oral and documentary evidence adduced by the parties
and also after making elaborate discussion, the Tribunal has come to the
conclusion that the negligence is only on the part of the driver of the
tempo van and since on the date of accident, the vehicle was insured
with the appellant, the Tribunal has directed the owner of the vehicle as
well as the appellant/ insurance company to pay compensation jointly to
the claimant. The appellant has not placed any other materials before
the Tribunal to disbelieve the evidence adduced on the side of the
claimants/ respondents. Though it was contended by the insurance
company/ appellant that the vehicle was used to carry passengers, no
evidence was adduced to prove their contention before the Tribunal. It
is found by the Tribunal that no contradictory statements between the
evidence of the claimant and the first information report. Further, while
the appellant denied their liability to pay compensation to the claimant,
they have not served notice to the respondents in the present appeal,
despite sufficient opportunities given to the appellant, Therefore,
inview of the above said discussion, the contention of the appellant
cannot be sustained and the same is liable to be rejected. Accordingly,
this court is of the opinion that the findings of the Tribunal does not
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CMA No.3248 of 2010
warrant any interference by this court and the appeal fails.
13. In the result,
(i) The civil miscellaneous appeal is dismissed. No costs.
The connected miscellaneous petition is closed.
(ii) The appellant/insurance company is directed to deposit
the compensation as awarded by the Tribunal along with interest at the
rate of 7.5.% p.a. from the date of claim petition till the date of deposit,
less the amount if already deposited, within a period of six weeks from
the date of receipt of a copy of this order.
(iii) On such deposit being made by the insurance
company, the claimant is entitled to withdraw the same, after following
due process of law.
10.03.2021
Index:Yes/No
Internet:Yes/No
Speaking/non Speaking order
mst
To
https://www.mhc.tn.gov.in/judis/
CMA No.3248 of 2010
1. The Chief Judicial Magistrate, Motor Accident claims Tribunal,
Namakkal.
2. M/s National Insurance Company Ltd., III Floor, Anuradha Complex,
No. 10,Krishnagiri.
3. Section Officer, V.R.Section, Madras High Court, Chennai-104.
https://www.mhc.tn.gov.in/judis/
CMA No.3248 of 2010
D. KRISHNAKUMAR, J.
mst
CMA. No.3248 of 2010and
M.P.No. 1 of 2012
10.03.2021
https://www.mhc.tn.gov.in/judis/
