Madras High Court
The Divisional Manager vs N.Nambathal on 10 March, 2021
CMA(MD)No.180 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED 10.03.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.180 of 2011
and
M.P(MD)No.1 of 2011
The Divisional Manager,
The New India Assurance Company Ltd.,
Kamarajar Salai,
Madurai – 625 009. .. Appellant
vs.
1.N.Nambathal
2.N.Nainammal
3.Muthulakshmi
4.N.Pothumponnu
5.Minor Panchavarnam
(Minor represented by her mother
and natural guardian the 1st respondent)
(R5 declared as major vide
Judgment dated 10.03.202)
6.R.Gopalakrishnan ...Respondents
1/8
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CMA(MD)No.180 of 2011
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988 against the order dated 20.07.2010 made in MCOP
No.863 of 2003 on the file of the Motor Accident Claims Tribunal
(Additional District and Sessions Judge, Fast Track Court No.II)
Madurai.
For Appellant : Mr.B.Vijayakarthikeyan
For Respondents : No appearance
JUDGMENT
This appeal is directed against the award passed by the Motor
Accident Claims Tribunal (Additional District and Sessions Judge, Fast
Track Court No.II) Madurai in MCOP No.863 of 2003.
2.The claim petition in MCOP No.863 of 2003 was filed by injured
claimant Nalluchamy. Pending claim petition, he passed away on
29.08.2008. Thereafter, his wife and children were impleaded as
petitioners. It is the case of the claimants that on 27.06.2002 at 05.30
p.m, the deceased Nalluchamy was returning in a bicycle after finishing
his work at quarry in Melur – Thiruppathur main road on the extreme left
side of the road. While so, a motorcycle bearing registration No.TN-59-
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CMA(MD)No.180 of 2011
P-2270, which was driven by its driver in a rash and negligent manner,
hit against the bicycle. As a result of which, he sustained multiple
injuries. Immediately, he was carried to a private hospital at Melur,
where he took treatment from 27.06.2002 to 04.07.2002 as inpatient and
thereafter, he was shifted to Government Hospital, Melur, where, he took
treatment as inpatient from 05.07.2002 to 15.07.2002. According to the
claimants, after discharge from the Government Hospital, he was taking
treatment with Dr.K.S.Viswanathan, M.S., (Ortho) from 16.07.2002, but
unfortunately, he died on 29.08.2008.
3.The appellant contested the claim by filing a counter disputing
the averments made in the claim petition. It is further contended that the
accident was not reported to the insurance company immediately and it
was reported only after 8 days. Further, in the First Information Report,
the offending vehicle number is mentioned as TN-59-L-7779 instead of
TN-59-P-2270. The vehicle was also produced after lapse of 21 days and
the death is not due to the injuries sustained in the accident and hence, no
liability can be fastened on the insurance company.
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CMA(MD)No.180 of 2011
4.During the trial, the parties adduced oral and documentary
evidence. On the side of the claimants, 5 witnesses were examined and 8
documents were marked. On the side of the insurance company, two
witnesses were examined and one document was produced. After
analyzing the evidence adduced by the parties, the Tribunal came to the
conclusion that the accident had occurred due to the negligence of the
rider of the motorcycle bearing registration No.TN-59-P-2270 and hence,
the claimants are entitled for compensation of Rs.2,18,000/-.
Questioning the award, the present appeal has been filed.
5.Mr.B.Vijaykarthikeyan, learned counsel for the appellant would
argue that the Tribunal failed to note that the accident had occurred as
early as on 27.06.2002, whereas, the deceased died after lapse of 6 years
i.e., on 29.08.2008. According to the learned counsel, no evidence was
produced by the claimants to show that the death occurred due to the
injuries sustained in the accident. So, the claimants would be entitled
only for medical expenses incurred on the original claimant and the other
claims have to be rejected.
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CMA(MD)No.180 of 2011
6.Heard the learned counsel for the appellant and perused the
materials available on records.
7.In the matter on hand, it is not in dispute that the original
claimant Nalluchamy sustained injuries in an accident that took place on
27.06.2002. He filed the claim petition categorically stating that from
27.06.2002 to 04.07.2002, he took treatment as inpatient in a private
hospital at Melur and thereafter, he was shifted to the Government
Hospital, Melur, in which, he took treatment from 05.07.2002 to
15.07.2002. Though it is further stated that from 16.07.2002, he was
taking treatment with Dr.K.S.Viswanathan, he was not examined as
witness in support of his claim.
8.It is relevant to note that he lost his breath only on 29.08.2008
i.e., after lapse of 6 years from the date of accident. It is well settled law
that it is for the claimant to prove that the death occurred in view of the
injuries sustained in the accident. In the matter on hand, the claimants
failed to produce medical records of the deceased for taking treatment till
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CMA(MD)No.180 of 2011
he died on 29.08.2008. Furthermore, the dead-body was not subjected to
the postmortem and no postmortem certificate was produced before the
Tribunal. The Tribunal based on the evidence of P.Ws.4 and 5 and Exs.P.
5 and P.6, held that he died on account of the injuries sustained in the
accident. In the present case, admittedly, no medical records were
produced to prove that the death happened due to the injuries sustained
in the accident, so, the conclusion arrived at by the Tribunal based on the
opinion given by the doctors cannot be countenanced, accordingly, it is
hereby set aside.
9.It is well settled that in the case of injury and when the claimant
dies during the pendency of the claim, the legal heirs are entitled for
expenses including medical expenses. The Tribunal has awarded Rs.
20,000/- towards medical and other incidental expenses. Therefore, the
claimants would be entitled only Rs.20,000/- together with interest at 9%
per annum from the date of claim petition till the date of realization.
Hence, the amount awarded by the Tribunal Rs.2,18,000/- is reduced to
Rs.20,000/-.
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CMA(MD)No.180 of 2011
10.The claim petition is of the year 2003 and at that relevant point
of time, the 5th claimant was minor and by now, she should have been
become major. So, she is declared as major and the Tribunal is hereby
directed to disburse her share.
11.In the result, this Civil Miscellaneous Appeal is allowed. It is
represented by the learned counsel for the appellant that already entire
award amount has been deposited. Hence, the claimants are permitted to
withdraw the modified award amount equally together with proportionate
interest and costs. The balance amount shall be refunded to the appellant
/ Insurance Company. No costs. Consequently, connected miscellaneous
petition is closed.
10.03.2021
Index:Yes/No
Internet:Yes/No
skn
To
1.TheMotor Accident Claims Tribunal
(Additional District and Sessions Judge,
Fast Track Court No.II) Madurai.
http://www.judis.nic.in
CMA(MD)No.180 of 2011
K.KALYANASUNDARAM.,J
skn
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
JUDGMENT MADE IN
C.M.A(MD)No.180 of 2011
and
M.P(MD)No.1 of 2011
10.03.2021
http://www.judis.nic.in
