United India Insurance Co. Ltd vs Suresh
2021 Latest Caselaw 6332 Mad

                                                                          C.M.A. No.2500 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 10.03.2021

                                                      CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                               C.M.A.No.2500 of 2019
                                             and C.M.P.No.11778 of 2019

                   United India Insurance Co. Ltd.,
                   Divisional Office,
                   104-A, Peramanur Main Road,
                   Salem - 7                                                   .. Appellant

                                                         Vs.

                   1.Suresh

                   2.Santhi

                   3.Prabhu                                                   .. Respondents


                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                   Vehicles Act, 1988, against the Judgment and Decree dated 27.09.2018 made

                   in M.C.O.P.No.286 of 2016 on the file of the Special Sub Court No.2, (Motor

                   Accident Claims Tribunal), Salem.


                   _____
                   1/12



https://www.mhc.tn.gov.in/judis/
                                                                                   C.M.A. No.2500 of 2019



                                             For Appellant      : Ms. I.Malar

                                             For Respondents : No appearance (For R1 & R2)


                                                      JUDGMENT

(The matter is heard through Video Conferencing/Hybrid mode)

This appeal has been filed by the appellant-Insurance Company to set

aside the award dated 27.09.2018 made in M.C.O.P.No.286 of 2016 on the

file of the Special Sub Court No.2, (Motor Accident Claims Tribunal), Salem.

2.The appellant is the 2nd respondent in M.C.O.P. No.286 of 2016 on

the file of the Special Sub Court No.2, (Motor Accident Claims Tribunal),

Salem. The 1st respondent/claimant filed the said claim petition, claiming a

sum of Rs.20,00,000/- as compensation for the injuries sustained by him in

the accident that took place on 11.01.2016.

3.According to the 1st respondent, on the date of accident, when he was

riding the Motorcycle bearing Registration No.TN-66-F-3735 near

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

Kandampatti over bridge, on the Bangalore main road, the driver of the Tata

Ace bearing Registration No.TN-24-V-1441 belonging to the respondents 2

and 3 drove the same in a rash and negligent manner and applied sudden

brake without giving any signal. Due to the unexpected act of the Tata Ace

driver, the 1st respondent/rider of the Motorcycle dashed against the back side

of the Tata Ace and thus, the accident occurred. In the accident, the 1st

respondent sustained severe fracture and injuries all over the body. The

accident has occurred only due to rash and negligent driving by driver of the

Tata Ace belonging to the 2nd respondent. Hence, the 1st respondent filed the

claim petition claiming compensation against the respondents 2 and 3 as

owners and appellant as insurer of the said vehicle.

4.The respondents 2 and 3, owners of the Tata Ace, 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.

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

According to the appellant, the accident occurred when the 1st respondent

rode the Motorcycle in a rash and negligent manner, dashed on the backside

of the Tata Ace belonging to the 2nd respondent and invited the accident. The

TIW Salem City Police has registered a case against the driver of the Tata Ace

in Crime No.65/16 and the same was closed as mistake of fact, after issuing

proper notice to the 1st respondent. The accident occurred only due to rash

and negligent riding of the Motorcycle by the 1st respondent. The accident

occurred on 11.01.2016 at about 6.30 p.m. But only on 18.01.2016, after 7

days of the accident, the 1st respondent has given complaint and FIR was

registered on the same day. The 2nd respondent has violated the policy

conditions by permitting the driver to drive the Tata Ace goods vehicle

without any badge endorsement. The claim petition is bad for non-joinder of

owner and insurer of the Motorcycle. At the time of accident, the 1st

respondent/rider of the Motorcycle did not possess valid driving license to

ply the vehicle. The 1st respondent has to prove that the driver of the Tata Ace

possessed valid fitness certificate, permit and tax validity. The appellant filed

additional counter statement and contended that the Registration Certificate

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

of the Tata Ace vehicle was valid only till 08.10.2015 and the same was not

renewed on the date of accident viz., 11.01.2016. Hence, the appellant is not

liable to pay compensation to the 1st respondent and prayed for dismissal of

the claim petition.

6.Before the Tribunal, the 1st respondent examined himself as P.W.1

and marked 6 documents as Exs.P1 to P6. The appellant examined one

R.K.Ramamoorthy, Special Sub-Inspector of Police, Salem Transport

Corporation Investigation Wing as R.W.1, K.Karthi, Accountant of the Salem

South Regional Transport Office as R.W.2, Saradha, Assistant of the

Regional Transport Office, Perambalur as R.W.3 and marked 5 documents as

Exs.R1 to R5. Seven documents were marked as witness evidences viz.,

Exs.W1 to W7. One document was marked as Court evidence viz., Ex.X1.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

driver of the Tata Ace belonging to the respondents 2 and 3 and directed the

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

appellant as insurer of the said vehicle to pay a sum of Rs.7,30,182/- as

compensation to the 1st respondent at the first instance and recover the same

from the respondents 2 and 3.

8.To set aside the award of the Tribunal dated 27.09.2018 made in

M.C.O.P.No.286 of 2016, 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 riding by

the 1st respondent, rider of the Motorcycle. The Tribunal, without there being

any documentary evidence, erroneously fixed the negligence on the part of

the driver of the Tata Ace. The Tribunal erroneously held that the driver of the

Tata Ace drove the vehicle in a rash and negligent manner and suddenly

stopped the vehicle, which caused the accident. The Tribunal failed to

consider the evidence of R.W.1 and Ex.W1, the final report. The Tata Ace

vehicle did not have fitness certificate at the time of accident. Hence, the

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

Tribunal ought to have exonerated the appellant from its liability. There is no

evidence to prove that income of the 1st respondent is reduced due to the

injuries sustained in the accident. The 1st respondent failed to prove the

monthly income. The Tribunal erroneously adopted the multiplier method and

awarded excessive amounts as compensation and prayed for setting aside the

award of the Tribunal.

10.Though notice has been served on the respondents 1 and 3 and their

names are printed in the cause list, there is no representation for them either

in person or through counsel. The notice sent to the 2nd respondent returned

with an endorsement 'refused'. The Registry has printed the name of the 2nd

respondent in the cause list.

11.Heard the learned counsel appearing for the appellant-Insurance

Company and perused the materials available on record.

12.It is the case of the 1st respondent that while he was driving the

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

Motorcycle, the driver of the Tata Ace belonging to the respondents 2 and 3

and insured with the appellant, which was going in front of the Motorcycle,

suddenly stopped the vehicle without any indication. Due to the negligent act

of the driver of the Tata Ace, the 1st respondent dashed on the backside of the

Tata Ace and thus, the accident occurred. To substantiate this contention, the

1st respondent examined himself as P.W.1 and marked the FIR which was

registered against the driver of the Tata Ace as Ex.P1. On the other hand, it is

the case of the appellant that the accident occurred only due to the negligence

of the 1st respondent and relied on Ex.W1 – final report, filed by the

Investigating Officer, closing the case as mistake of fact. The Tribunal

considering the judgment of this Court and the Hon'ble Apex Court, held that

the negligence cannot be fixed based on the final report, but must be fixed

based on the evidence and documents placed before it. The appellant has not

examined the driver of the Tata Ace or any eye witness to disprove the

evidence of P.W.1. The Tribunal considering the evidence of P.W.1 and in the

absence of any contra evidence, held that the accident occurred due to rash

and negligent driving by driver of the Tata Ace belonging to the respondents

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

2 and 3. As far as fixing of liability is concerned, the Tribunal considering the

fact that the Tata Ace vehicle belonging to the respondents 2 and 3 did not

have Fitness Certificate at the time of accident, directed the appellant to pay

compensation to the 1st respondent at the first instance and recover the same

from the respondents 2 and 3. 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 1st

respondent claimed that in the accident, he sustained severe fracture and

injuries all over the body and has taken treatment as inpatient in Coimbatore

Richmond Hospital in two different spells viz., from 12.01.2016 to

04.02.2016 and from 05.03.2016 to 10.03.2016. He was referred to the

Medical Board and the Medical Board certified that the appellant suffered

40% disability. According to the 1st respondent, he was working as a

Marketing Executive in Water Tech India Pvt. Ltd., and was earning a sum of

Rs.19,000/- per month. He failed to prove the said contention. In the absence

of any material evidence, the Tribunal fixed a sum of Rs.7,500/- per month as

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

notional income of the 1st respondent. The accident occurred in the year 2016.

The monthly income fixed by the Tribunal is not excessive. Due to the

injuries sustained in the accident, he could not continue his work as

Marketing Executive. The Tribunal considering the nature of avocation and

disability suffered, fixed 20% as functional disability, granted 40%

enhancement towards future prospects and awarded compensation by

adopting multiplier method. The total compensation awarded by the Tribunal

under different heads are not excessive, warranting interference by this Court.

14.In the result, this Civil Miscellaneous Appeal is dismissed and

amount awarded by the Tribunal at Rs.7,30,182/- together with interest at the

rate of 7.5% per annum from the date of petition till the date of deposit is

confirmed. The appellant is directed to deposit the award amount, along with

interest and costs, 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.286 of 2016 at the first

instance and recover the same from the respondents 2 and 3. On such deposit,

the 1st respondent is permitted to withdraw the award amount, along with

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

interest and costs, after adjusting the amount, if any, already withdrawn, by

filing necessary applications before the Tribunal. Consequently, connected

Miscellaneous Petition is closed. No costs.

10.03.2021 Index : Yes/No gsa

To

1.The Special Subordinate Judge No.2, (Motor Accident Claims Tribunal), Salem.

2.The Section Officer, V.R Section, High Court, Madras.

_____

https://www.mhc.tn.gov.in/judis/ C.M.A. No.2500 of 2019

V.M.VELUMANI, J.,

gsa

C.M.A.No.2500 of 2019

10.03.2021

_____

https://www.mhc.tn.gov.in/judis/