Madras High Court
M/S.United India Insurance vs Kala on 19 November, 2021
C.M.A. No.200 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.11.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A. No.200 of 2021 &
C.M.P.No.1408 of 2021
M/s.United India Insurance
Company Limited,
No.38, Anna Salai,
Chennai. ... Appellant
Vs.
1.Kala
W/o.P.Karunakaran
2.Vishnu (Minor)
S/o.P.Karunakaran
3.Santhosh (Minor)
S/o.P.Karunakaran
4.Lithika (Minor)
D/o.P.Karunakaran
Minor petitioners 2 to 4 are
Rep. by their mother & Next Guardian
Mrs.Kala)
5.Mariyammal
( All are residing at
No.54, Nehru Nagar,
4th Street, Puliyanthoppu,
Chennai - 600 012)
6.Kathirvel ... Respondents
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C.M.A. No.200 of 2021
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988 against the Judgment and Decree dated 31.01.2019 passed in
M.A.C.T.O.P.No.1421 of 2014 by the Motor Accidents Claims Tribunal, Special
Sub Judge No.I, Small Causes Court, Chennai.
For Appellant : Mrs.Rathna Thara
For Respondents : Mr.P.Anbazhagan
For R1 to R5
JUDGMENT
Judgment of the Court was delivered by V.SIVAGNANAM. J.
Questioning the award passed by the Motor Accident Claims Tribunal,
Special Sub Judge No.I, Small Causes Court, Chennai in M.C.O.P.No.1421 of
2014, dated 31.01.2019, the present appeal has been filed by the Insurance
Company.
2. It is the case of the respondents 1 to 5 herein/claimants, that on
18.09.2013, about about 16.45 hours, due to wordy quarrel took place between
the deceased and his friends, the deceased was pushed by his friends and he
fell down at the platform. At that time, the Eicher vehicle bearing registration
No.TN-22-Y-0333, which was insured with the appellant Insurance Company,
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C.M.A. No.200 of 2021
came in a rash and negligent manner on the way crushed the head of the
deceased and as a result, the deceased sustained head injuries and died on the
spot. Alleging that the accident had occurred due to the negligence of the
driver of the Eicher vehicle, the legal heirs of the deceased laid a claim
petition, claiming a compensation of Rs.30,00,000/-.
3. Resisting the claim petition, the Insurance Company filed their
counter disputing the manner of accident, age, occupation and income of the
deceased and its liability to pay the compensation.
4. To substantiate the claim, on the side of the claimants PW1 and PW2
were examined and Ex.P1 to Ex.P10 were marked. On the side of the Insurance
Company, one Mrs.S.Shajeeba, Sub Inspector of Police, Puliyanthoppu Police
Station was examined as RW1 and Exs.R1 to R5 were marked.
5. The Tribunal, after considering the oral and documentary evidence
held that the driver of the Eicher vehicle was responsible for the accident and
awarded a compensation of Rs.19,63,600/- along with interest at 7.5% per
annum. Assailing the award, the Insurance Company has filed the present
appeal.
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C.M.A. No.200 of 2021
6. The learned counsel for the appellant Mrs.Rathna Thara would
submit that the Tribunal ought to have dismissed the claim petition filed under
Section 166 of Motor Vehicles Act, when the claimants have failed to establish
that the alleged accident occurred only due to rash and negligent driving of the
driver of the Eicher Mini lorry. Further, the Tribunal failed to consider that the
deceased was neither pedestrian on the road nor he was on a another vehicle.
When the deceased and few of his friends under the influence of alcohol in an
inebriated condition had a wordy quarrel among themselves and one of them
had pushed the deceased person from the platform to the road. As a result of
which, the deceased fell on the rear side of the ongoing vehicle and died on
the sport as per Ex.P1-F.I.R.
7. Per contra, Mr.S.Deenadhayalan, learned counsel appearing for the
respondents 1 to 5/ claimants, supported the conclusion arrived at by the
Tribunal and prayed for dismissal of the appeal.
8. Heard Ms.Rathna Thara, learned counsel for the appellant-Insurance
Company; Mr.P.Anbazhagan, learned counsel for the respondents 1 to 5 /
claimants and perused the materials available on record.
9. In this case, the Tribunal came to the conclusion that that the
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accident had occurred due to the rash and negligent driving of the Eicher Mini
Lorry. But, on the side of the Insurance Company, it is stated that the accident
had occurred only because the deceased under the influence of alcohol was
pushed by the first accused (Jegan) A1 during the quarrel and thereby, the
deceased fell on the rear wheels of the Eicher Mini Lorry and died on the spot.
Hence, it has to be decided whether the accident had occurred due to the rash
and negligent driving of the driver of the Eicher Mini Lorry.
10. The Tribunal had fixed the negligence aspect based on the evidence
of P.W.2 and the evidence of R.W.1, Inspector of Police and Exs.R1 to R5. The
Tribunal held in paragraph No. 7(ii) that "According to P.W.2-eyewitness, due
to the quarreling between the deceased and three persons and also due to
the rash and negligent driving of the driver of the said Eicher Mini Lorry only
this accident occurred". However, on a perusal of the evidence of P.W.2 , it
could be seen that he was not a witness to the accident, whereas, he heard
about the quarrel between the deceased and his friends and he does not know
whether they are under the influence of alcohol or not, besides deposing that
he does not know where the deceased sustained injury on his body.
Therefore, this Court finds it difficult to accept the version of P.W.2 as it looks
artificial.
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11. We have perused the deposition of R.W.1-Inspector of Police along
with the documents produced by her marked as Exs.R1 to R5. The Tribunal
held that on a perusal of final report, which marked as Ex.R5, the first
respondent's driver, viz., Kathirvel was charged under Section 279, 304 (A) IPC
and the first respondent's driver has been charged for the rash and negligent
driving and for causing death. But, there was no finding to substantiate the
involvement of the vehicle in question in the alleged accident. In our
considered view, it is crystal clear as could be seen from Ex.P1-F.I.R, Ex.R2-
Mahazar and rough sketch, Ex.R-4 Forensic Report and postmortem certificate,
and Ex.R5-final report, that the deceased was pushed by one of his friends and
he fell down from the platform and at that time, when the vehicle in question
crossing the road, the deceased struck on the rear wheels and succumbed to
his injuries. Therefore, it is vividly clear that there was no negligent on the
part of the driver of the Eicher Mini Lorry and the accident had occurred only
to the wrongful act committed by the friends of the deceased, viz., Jagan,
Sathish and Murali. Therefore, we are of the considered view that the accident
had not occurred due to the negligence of the driver of the Eicher Mini Lorry .
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12. It is contended by the learned counsel for the appellant that the
Investigating Officer has produced the fake final report and based on the same,
the Tribunal had fixed the negligence on the part of the Eicher Mini Lorry and
further contended that the charge sheet is yet to be filed and the final report
produced before the Tribunal is a fabricated one. The said factum of non filing
of charge sheet is not disputed by the learned counsel for the claimants.
13. Even if the deceased was himself at fault, he would still be entitled
to statutory compensation permissible under "no fault liability" as observed in
Rajan Kuttil Nayar Vs. TNSTC Limited [2007 (2) TN MAC 387] (Mad), Durai
Raj Vs. TNSTC Limited [2007 (2) TN MAC 87] (Mad). Therefore, as the
accident took place without any rashness and negligence on the part of the
driver of the Eicher Mini Lorry, the claimants are entitled compensation under
principle of 'no fault liability'.
14. As per Section 140 of the Motor Vehicles Act, it is well settled that
the Insurance Company or the owner, as the case may be, is bound to honour
and pay the compensation under Section 140 (2) Rs. 50,000/- in the case of
death and Rs. 25,000/- in the case of permanent disablement. Claim for any
further amount could be defeated by the Insurance Company or the owner or
owners of the vehicle, as the case may be, if they could establish that the
death or disablement occurred due to wrongful act, neglect or default of the
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deceased or disabled person. Admittedly, in the case on hand, as held above,
there was no negligence on the part of the driver of the Eicher Mini Lorry and
therefore, the appellant insurance Company is not liable to pay compensation,
except a sum of Rs.50,000/- under the head of "No fault liability".
15. In the result, the Civil Miscellaneous Appeal is allowed. The
Judgment and Decree dated 31.01.2019 made in M.A.C.T.O.P.No.1421 of 2014,
on the file of Motor Accidents Claims Tribunal, Special Sub Judge No.I, Small
Causes Court, Chennai, is set aside. It is represented that the appellant has
deposited 50% of the award amount. The first respondent / first claimant is
entitled for a sum of Rs.50,000/- under the head of "No fault liability" and
permitted to withdraw the said amount of Rs.50,000/- along with interest
at the rate 7.5% per annum from the date of filing the claim petition till the
date of payment of compensation, and the excess amount, shall be returned to
the appellant / Insurance company. There is no order as to costs.
Consequently, connected miscellaneous petition is closed.
[M.K.K.S, J] [V.S.G., J]
19.11.2021
Index : Yes / No
Speaking order: Yes/No
rns
To
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1. The Special Sub Judge No.I,
Motor Accidents Claims Tribunal,
Small Causes Court,
Chennai.
2. The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A. No.200 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
rns
C.M.A. No.200 of 2021 &
C.M.P.No.1408 of 2021
19.11.2021
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