Madras High Court
M/S.Icici Lombard General vs Nikila on 24 November, 2021
C.M.A.Nos.44 of 2014,
3081 & 3083 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.Nos.44 of 2014, 3081 & 3083 of 2019
and
M.P.No.1 of 2014, C.M.P Nos.16969 & 16989 of 2019
M/s.ICICI Lombard General
Insurance Company Limited, Mumbai,
Branch Office at Swarnambigai Plaza
6/5, Block No.7, Omalur Main Road
Salem-9. .. Appellant in all appeals
Vs.
1.Nikila
2.Minor S.Loga Prasath
rep. by N.F.Mother
1st respondent herein
3.Devagi
4.Mohan
5.Namakkal South Indian
Transport (Regd) Salem Road
Namakkal District.
6.Natarajan
7.P.Kumarasamy
8.National Insurance Co. Ltd
Divisional Office-II, Siva Towers
Ramakrishna Road, Salem-7.
(Respondents 5 to 7 are set
exparte in Lower Court) .. Respondents in
C.M.A No.44 of 2014
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1.Vennila
2.Mohanraj
3.Nagaraj
4.Kumarasamy
5.National Insurance Co. Ltd.,
(Attur), Having D.O at
LRN Complex
Saradha College Main Road
Salem-7.
6.Namakkal South India Transports
610, Salem Road
Namakkal District ...Respondents in
C.M.A No.3081 of 2019
1.Sudha Lakshmi
2.Namakkal South India Transporters
(Regd)
610, Salem Road
Namakkal District
3.Kumarasamy
4.National Insurance Co. LTd.,
First Floor, No.638, Cuddalore
Main Road, Post Box No.7
Attur-636 102
5.Pushpam ...Respondents in
C.M.A No.3083 of 2019
Prayer in C.M.A.No.44 of 2014: This Civil Miscellaneous Appeal is filed
under Section 173 of Motor Vehicles Act, 1988, against the Judgment and
Decree dated 28.12.2011 in M.C.O.P.No.287 of 2010 on the file of the Motor
Accident Claims Tribunal, Additional District Court, (Fast Track Court No.I),
Salem.
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Prayer in C.M.A.Nos.3081 & 3083 of 2019: These Civil Miscellaneous
Appeals are filed under Section 173 of Motor Vehicles Act, 1988, against the
Judgment and Decree dated 23.09.2016 in M.C.O.P.Nos.7 of 2011 and 808
of 2010 on the file of the Motor Accident Claims Tribunal (Special District
Court), Salem.
For Appellant : Mrs.R.Sreevidhya in all C.M.As
In C.M.A.No.44 of 2014
For Respondents : Mr.S.P.Yuvaraj for R1 to R4
Mr.S.Vadivel for R8
R5 to R7-Ex-parte
In C.M.A.No.3081 of 2019
For Respondents : Mr.S.P.Yuvaraj for R1 to R3
Mr.S.Vadivel for R5
R4 & R6-Ex-parte
In C.M.A.No.3083 of 2019
For Respondents : Mr.S.P.Yuvaraj for R1
Mr.S.Vadivel for R4
R2 & R3-Ex-parte
COMMON JUDGMENT
C.M.A.No.44 of 2014 is filed against the award dated 28.12.2011
made in M.C.O.P.No.287 of 2010 on the file of the Motor Accident Claims
Tribunal, Additional District Court, (Fast Track Court No.I), Salem.
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2.C.M.A.Nos.3081 & 3083 of 2019 are filed against the common
award dated 23.09.2016, made in M.C.O.P.Nos.7 of 2011 and 808 of 2010
on the file of the Motor Accident Claims Tribunal (Special District Court),
Salem.
3.These three Civil Miscellaneous Appeals are arising out of the same
accident and two different awards and hence, they are disposed of by this
common judgment.
4.The appellant/Insurance Company is 2nd respondent in
M.C.O.P.No.287 of 2010(C.M.A.No.44 of 2014), M.C.O.P.No.808 of
2010(C.M.A.No.3083 of 2019) and 4th respondent in M.C.O.P.No.7 of
2011(C.M.A.No.3081 of 2019). The claimants filed the above three claim
petition claiming a sum of Rs.12,00,000/-, Rs.25,00,000/- and
Rs.30,00,000/-respectively as compensation for the death of Suresh, Elango
and Murugesan who died in the accident that took place on 29.09.2009.
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5.According to the claimants, on 29.09.2009 at about 2.15 a.m., while
the deceased Suresh, Murugesan, Elango and others were travelling in the
omni van in GST Road, Pallipettai, Acharapakkam, Kanchipuram District, the
driver of the torus trailer lorry bearing Registration No.TN 28 AB 9310, who
was coming in a rash and negligent manner, overtook the omni van on the
right side, suddenly came to the left side of the road before completely
overtaking the omni van, dashed the omni van and caused the accident. In the
said accident, Suresh, Murugesan, Elango and the driver of the omni van died
and others sustained injuries. Taking advantage of the same, the driver of the
torus trailer lorry lodged false complaint against the deceased Suresh, the
driver of the omni van. According to the claimants, the accident occurred only
due to rash and negligent driving by the driver of the torus trailer lorry
belonging to the 1st respondent, insured with the appellant/ ICICI Insurance
Company. The claimants have claimed compensation depending upon the age,
occupation and income of the deceased persons.
6.The respondents 1, 3 and 4 in M.C.O.P.No.287 of 2010, who are the
owner of the lorry, driver of the lorry and owner of the omni van, the 1st
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respondent in M.C.O.P.No.808 of 2010/owner of the lorry and 3rd respondent
in M.C.O.P.No.7 of 2011/owner of the lorry remained exparte before the
Tribunal.
7.The appellant/Insurance Company, insurer of the torus trailer lorry
filed counter statements in all the three claim petitions, denying all the
averments made in the claim petitions and contended that the accident
occurred only due to rash and negligent driving by driver of the omni van,
who tried to overtake the torus trailer lorry on the left hand side, dashed on
the backside of the torus trailer lorry and caused the accident. The driver of
the torus trailer lorry was not responsible for the accident. The First
Information Report was registered only against the deceased Suresh, the
driver of the omni van. The insurer of the torus trailer lorry denied all other
averments with regard to the compensation claimed by the claimants and
prayed for dismissal of all the three claim petitions.
8.The National Insurance Company, insurer of the omni van was made
party as 5th respondent in M.C.O.P.No.287 of 2010 (C.M.A.No.44 of 2014),
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the 4th respondent in M.C.O.P.Nos.808 of 2010 (C.M.A.No.3083 of 2019)
and 7 of 2011 (C.M.A.No.3081 of 2019).
9.The National Insurance Company filed counter statement and
contended that the accident occurred only due to rash and negligent driving by
the driver of the torus trailer lorry. The driver of the omni van was not
responsible for the accident and hence, the National Insurance Company is
not liable to pay any compensation to the claimants and prayed for dismissal
of the claim petition against the National Insurance Company.
10(i).M.C.O.P.No.287 of 2010 was decided first and award was passed
on 28.12.2011 by the Tribunal. In the said claim petition, 1st claimant was
examined as P.W.1, Kumarasamy, owner of the omni van was examined as
P.W.2, one Saravanan, eye-witness was examined as P.W.3 and marked 5
documents as Exs.P1 to P5. On the side of the National Insurance Company,
Natarajan, the driver of the torus trailer lorry was examined as R.W.1 and
Lakshmanakumar, their Official was examined as R.W.2 and no document
was marked.
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10(ii).The Tribunal considering the evidence of P.W.3, an independent
witness, did not accept the evidence of R.W.1, the driver of the torus trailer
lorry held that the accident has occurred only due to rash and negligent
driving by the driver of the torus trailer lorry. The Tribunal considering the
age, nature of work and income of the deceased Suresh, directed the owner of
the torus trailer lorry and appellant/Insurance Company, insurer of torus
trailer lorry to jointly and severally pay a sum of Rs.6,19,000/- as
compensation to the claimants and dismissed the claim petition as against
driver of the torus trailer lorry, owner of omni van and National Insurance
Company, insurer of omni van.
10(iii).Against the said award dated 28.12.2011, made in
M.C.O.P.No.287 of 2010, the insurer of the torus Trailer has come with the
C.M.A.No.44 of 2014.
11(i).M.C.O.P.Nos.808 of 2010 and 7 of 2011 were taken up for
hearing subsequently and the common award dated 23.09.2016 was passed
by the Motor Accident Claims Tribunal (Special District Court), Salem. In the
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said claim petitions, before the Tribunal, the claimant in M.C.O.P.No.808 of
2010 was examined as P.W.1, the 1st claimant in M.C.O.P.No.7 of 2011 was
examined as P.W.2, one Balakrishnan was examined as P.W.3, Kumar,
Tahsildar of Gengavalli Taluk, one of the occupants of the omni van, eye-
witness was examined as P.W.4, Sumathi, Assistant in Athur Taluk Office,
co-worker of deceased Elango was examined as P.W.5 and marked 10
documents as Exs.P1 to P10 and Court documents as Exs.X1 to X3. On the
side of the Insurance Company, Natarajan, the driver of the torus Trailer was
examined as R.W.1, Premkumar and Venishkumar were examined as R.W.2
& R.W.3 and 5 documents were marked as Exs.R1 to R5.
11(ii).The Tribunal considering the pleadings, oral and documentary
evidence, did not accept the evidence of R.W.1, but accepted the evidence of
P.W.4 as eye-witness and held that the accident occurred only due to rash and
negligent driving by the driver of the torus trailer lorry, directed the appellant,
insurer of torus trailer lorry to pay a sum of Rs.18,61,335/- (M.C.O.P.No.7 of
2011) and Rs.22,07,760/- (M.C.O.P.No.808 of 2010) as compensation to the
claimants and dismissed the claim petition as against the owner and Insurance
Company of the omni van.
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11(iii).Against the common award dated 23.09.2016, made in
M.C.O.P.Nos.7 of 2011 and 808 of 2010, the insurer of the torus trailer lorry
has come with the C.M.A.Nos.3083 and 3081 of 2019.
12.The learned counsel appearing for the appellant/Insurance
Company, insurer of the torus trailer lorry contended that the Tribunal failed
to see that the First Information Report was registered against the driver of the
omni van. The accident has occurred only due to his negligence. The driver of
the omni van tried to overtake the torus trailer lorry on the left hand side,
dashed on the left side of the torus trailer lorry and caused the accident. The
evidence of R.W.1, the driver of the torus trailer lorry was corrobarated by
contents of First Information Report. The learned counsel further contended
that the presence of P.W.3 in M.C.O.P.No.287 of 2010 at the scene of
occurrence is doubtful as he has not helped the injured to admit in the
hospital, did not inform the family members of the victims and did not lodge
any complaint before the Police. The Tribunal erred in not even apportioning
liability on the part of the driver of the omni van. The claimants did not
examine the occupants of omni van, to rebut the evidence of R.W.1. In such
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circumstances, the Tribunal erred in holding that the accident occurred only
due to rash and negligent driving by the driver of torus trailer lorry and prayed
for setting aside all the three awards passed by the Tribunal.
13.Mr.S.P.Yuvaraj, learned counsel appearing for the claimants and
Mr.S.Vadivel, learned counsel appearing for the National Insurance
Company, insurer of the omni van made submissions in support of the award
of the Tribunal and prayed for dismissal of all the three Civil Miscellaneous
Appeals.
14.Heard the learned counsel appearing for the appellant/Insurance
Company, insurer of the torus trailer lorry, learned counsel appearing for the
claimants as well as learned counsel appearing for the National Insurance
company, insurer of the omni van and perused the entire materials available
on record.
15.It is the case of the claimants that the accident occurred due to rash
and negligent driving by the driver of the torus trailer lorry, while he was
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overtaking the omni van before completely overtaking, suddenly came to left
side, dashed on the omni van and caused the accident. On the otherhand, it is
the case of the appellant/Insurance Company, insurer of the torus trailer lorry
that the driver of the omni van drove the same in a rash and negligent manner
and by overtaking the torus trailer lorry, dashed on the backside of the torus
trailer lorry and caused the accident. The claimants in M.C.O.P.No.287 of
2010 examined one Saravanan, eyewitness as P.W.3. According to P.W.3, he
was driving Tata Indica Car at the time of accident and deposed that omni van
was going in front of him, the torus trailer lorry after overtaking his car, while
trying to overtake the omni van in the righthand side, suddenly came on the
lefthand side, dashed on the omni van and caused the accident. P.W.3 is an
independent eye-witness and there is no necessity to depose falsely to favour
the claimants. In other M.C.O.P.Nos.808 of 2010 and 7 of 2011, the
claimants examined one Kumar, the occupants of omni van as P.W.4 and he
has deposed as that of P.W.3 in M.C.O.P.No.287 of 2010.
16.The appellant/Insurance Company, insurer of the torus trailer lorry
in order to substantiate their case, examined one Natarajan, driver of the torus
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trailer lorry as R.W.1 and relied on the First Information Report, which was
registered against the driver of the omni van. The First Information Report
was registered based on the complaint given by R.W.1, the driver of the torus
trailer lorry. It is an admitted fact that due to the accident, the driver of the
omni van died on the spot, two other occupants subsequently died, the other
occupants of the omni van were grievously injured and injured persons could
not be able to give any complaint. The complaint was given by the driver of
the torus trailer lorry, who is an interested person and naturaly, he would give
complaint only against the driver of the other vehicle. Further, it is well settled
that the contents of the First Information Report is not a sole creteria to fix the
negligence on the part of the driver of the vehicle. More weightage must be
given to the evidence let in before the Tribunal on oath. In the present case,
the claimants have examined two eyewitnesses and proved that the accident
has occurred only due to rash and negligent driving by driver of the torus
trailer lorry, R.W.1. The appellant/Insurance Company except examining the
driver of the torus trailer lorry, who is an interested witness, did not examine
any independent witness to substantiate their claim. The appellant/Insurance
Company has raised a ground in three appeals that the claimants failed to
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examine occupants of the omni van and the same is factually incorrect. In
M.C.O.P.Nos.808 of 2010 and 7 of 2011, the claimants have examined one
Kumar, one of the occupants as P.W.4. The Tribunal considering the
pleadings, oral and documentary evidence let in before the Tribunal in proper
perspective, held that the accident occurred only due to rash and negligent
driving by the driver of torus trailer lorry, R.W.1, fixed the negligence on
R.W.1 and directed the appellant/Insurance Company to pay the
compensation to the claimants. There is no error or irregularity in the said
order of the learned Judge warranting interference by this Court.
17(i).In the result, C.M.A.No.44 of 2014 is dismissed and the amount
awarded by the Tribunal at Rs.6,19,000/- 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-Insurance Company, insurer of the lorry and 1 st respondent in
M.C.O.P.No.287 of 2010, owner of the lorry are jointly and severally directed
to deposit the award amount along with interest and costs, less the amount
already deposited, if any 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.287 of 2010. On such
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deposit, the claimants/respondents 1, 3 and 4 are permitted to withdraw their
respective share of the award amount along with proportionate interest and
costs, as per the ratio of apportionment fixed by the Tribunal, after adjusting
the amount, if any, already withdrawn, by filing necessary applications before
the Tribunal. The share of the minor 2nd respondent is directed to be
deposited in any one of the Nationalized Banks, till the minor attains majority.
The 1st respondent/Nikila, mother of the minor 2nd respondent is permitted to
withdraw the accrued interest, once in three months for the welfare of the
minor 2nd respondent. This appeal is dismissed as against driver of the torus
trailer lorry, owner of omni van and National Insurance Company/ insurer of
omni van, who are respondents 3 to 5 in M.C.O.P.No.287 of 2010. No costs.
Consequently, connected Miscellaneous Petition is closed.
17(ii) C.M.A.Nos.3081 and 3083 of 2019 are dismissed and the
amounts awarded by the Tribunal at Rs.18,61,335/- in M.C.O.P.No.7 of 2011
and Rs.22,07,760/- in M.C.O.P.No.808 of 2010 respectively together with
interest at the rate of 7.5% per annum from the date of petition till the date of
deposit are confirmed. The appellant-Insurance Company, insurer of the lorry
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is directed to deposit the award amount along with interest and costs, less the
amount already deposited, if any 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.Nos.7 of 2011 and
808 of 2010. On such deposit, the claimants in both claim petitions are
permitted to withdraw their respective share of the award amount along with
proportionate interest and costs, as per the ratio of apportionment fixed by the
Tribunal, after adjusting the amount, if any, already withdrawn, by filing
necessary applications before the Tribunal. C.M.A.No.3081 of 2019 is
dismissed as against owner of omni van and National Insurance
Company/insurer of omni van, who are respondents 1 and 2 in M.C.O.P.No.7
of 2011. C.M.A.No.3083 of 2019 is dismissed as against owner of omni van
and National Insurance Company/insurer of omni van, who are respondents 3
and 4 in M.C.O.P.No.808 of 2010. No costs. Consequently, connected
Miscellaneous Petitions are also closed.
24.11.2021
vkr
Index : Yes / No
Internet : Yes / No
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C.M.A.Nos.44 of 2014,
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To
1.The Additional District Court,
Fast Track Court No.I,
Motor Accident Claims Tribunal,
Salem.
2.The Section Officer,
VR Section, High Court,
Madras.
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V.M.VELUMANI, J.
vkr
C.M.A.Nos.44of 2014, 3081 &
3083 of 2019 and M.P.No.1 of
24.11.2021
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