Madras High Court
The New India Assurance Company ... vs Varalakshmi on 9 November, 2021
C.R.P.(PD).No.1802 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(PD).No.1802 of 2021
and
C.M.P.No.14009 of 2021
The New India Assurance Company Limited,
Rep. by its Divisional Manager,
Divisional Office, Officers Lane, Vellore. .. Petitioner
Vs.
1.Varalakshmi
2.Minor Vigneshwaran
3.Minor Oviya
4.Mohan Durai
5.Bharath Constructions,
19/34, R.S.Road,
Kondasamuthiram,
Gudiyattam – 632 602. .. Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the order dated 24.03.2021 passed in I.A.No.1
of 2019 in MCOP.No.33 of 2018 on the file of the Sub-Ordinate Court,
Gudiyattam.
1/8
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.1802 of 2021
For Petitioner : Mr.S.Dhakshinamoorthy
For Respondents : Mr.G.Vinodkumar for R1
Mr.R.Paramasivam for R5
R2 to R4 – No appearance
******
ORDER
This civil revision petition has been filed against the order of the
learned Sub-ordinate Judge, Gudiyattam made in I.A.No.1 of 2019 dated
24.03.2021. The said I.A.No.1 of 2019 was filed by the 2nd respondent /
Insurance Company seeking impleading of the owner of the vehicle that was
driven by the deceased at the time of the accident.
2.According to the Insurance Company, since the First Information
Report itself shows that two vehicles were involved in the accident, owners
of both the vehicles should be made parties to the claim petition. Unless the
owners of both the vehicles are made parties to the petition, the question of
contributory negligence cannot be decided in the proper perspective.
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C.R.P.(PD).No.1802 of 2021
3.This application was resisted by the proposed party contending that
it is the driver of the offending vehicle belonging to the 1st respondent
insured with the 2nd respondent Insurance Company, who was negligent in
driving the vehicle and even according to the First Information Report, the
cause of accident is the negligent and rash driving on the part of the driver
of the lorry bearing No.TN-41-AL-6256, which belongs to the 1st
respondent in the original petition and insured with the 2nd respondent.
Therefore, there is no necessity for impleading the owner of the vehicle,
which was driven by the victim. The Tribunal has concluded that in the
absence of any evidence to show that the deceased has contributed to the
accident, the owner of the lorry that was driven by the deceased is not a
necessary party to the MCOP.
4.Heard Mr.S.Dhakshinamoorthy, learned counsel appearing for the
petitioner, Mr.G.Vinodkumar, learned counsel for the 1st respondent and
Mr.R.Paramasivam, learned counsel for the 5th respondent. Though the
respondents 2 to 4 were served, they have not appeared either in person or
through counsel, duly instructed.
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C.R.P.(PD).No.1802 of 2021
5.Mr.S.Dhakshinamoorthy would draw my attention to the judgment
of the Hon'ble Division Bench of this Court in Oriental Insurance
Company Ltd., Kumbakonam vs. Thirugnanasambandam reported in
2020 (1) TN MAC 481 wherein, the Hon'ble Division Bench of this Court
has pointed out that in cases of collision, owners of both the vehicles must
be made parties to the MCOP. In fact, the Hon'ble Division Bench had
issued a direction to the Tribunals all over the state and in Pondicherry not
to number any claim petition without impleading the owner / insurer of the
vehicle, which was involved in the accident. The question, whether the
other vehicle contributed to the accident or not will have to be gone into
only at trial. Therefore, the Tribunal was not right in dismissing the
application for impleading the owner of the other vehicle involved in the
accident on the ground that there is no evidence of negligence on the part of
the driver of the other vehicle.
6.Contending contra, Mr.R.Paramasivam, learned counsel for the 5th
respondent would submit that even in the FIR, there is nothing to show that
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C.R.P.(PD).No.1802 of 2021
the victim / driver of the lorry bearing registration number MSV-7362 had
contributed to the accident and therefore, the Trial Court was right in
rejecting the application for impleading.
7.I am unable to countenance the submission of the learned counsel
for the respondent. Admittedly, there was a collision of two vehicles. Both
are heavy vehicles and both the drivers had died. The question of fact as to
whether there was any negligence on the part of the driver of one of the
vehicles or that both the drivers were negligent and both of them have
contributed to the accident will have to be decided only after evidence is
recorded on the issue of negligence.
8.As rightly pointed out by Mr.S.Dhakshinamoorthy, the Hon'ble
Division Bench of this Court has found that the practice of not impleading
the owner / Insurer of one of the vehicles and getting the award against the
one of the insurers alone is not a proper practice. The Hon'ble Division
Bench had infact, directed all the tribunals to insist upon impleading of both
the vehicle owners if more than one vehicle is involved in the accident
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C.R.P.(PD).No.1802 of 2021
except in the cases where the other vehicle is unidentifiable.
9.In view of the direction of the Hon'ble Division Bench, it becomes
all the more imperative for the Tribunal to implead the owner of the other
vehicle also and relegate issue relating to negligence to the trial stage. I am
therefore, of the considered opinion that the order of the Trial Court suffers
from material irregularity and the same has to be interfered with.
Accordingly, this civil revision petition is allowed, IA.No.1 of 2019 will
stand allowed, the proposed party / owner of the lorry bearing number
MSV-7362 is impleaded as a party and arrayed as 5 th respondent in the
original petition. Consequently, connected miscellaneous petition is closed.
09.11.2021
kkn
Index: No
Internet : Yes
Speaking order
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.1802 of 2021
To
The Sub-ordinate judge,
Gudiyattam.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.1802 of 2021
R.SUBRAMANIAN, J.
KKN
C.R.P.(PD).No.1802 of 2021
and
C.M.P.No.14009 of 2021
09.11.2021
https://www.mhc.tn.gov.in/judis
