Madras High Court
R.Hemalatha vs Suguna Durgarajan on 25 November, 2021
CMA(MD)No.862 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.11.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.ANANTHI
CMA(MD)No.862 of 2014
1.R.Hemalatha
2.Minor R.Atchayabala
3.Minor R.Bhawatharani
(Minors 2 & 3 represented by their mother/first appellant)
4.B.Rajalakshmi
... Appellants
vs.
1.Suguna Durgarajan
2.The Branch Manager,
The National Insurance Company Limited,
Tallakulam Branch,
2-A, Thirumukkulam North Street,
Tallakulam, Madurai - 2.
... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 to set aside the Judgment and decree dated
01.08.2007 in MCOP.No.241/2003 on the file of the Motor Accident
Claims Tribunal, III Additional District and Sessions Court (PCR),
Madurai.
For Appellants : Mr.K.K.Senthil
For Respondents : Mr.D.Sivaraman for R2
No appearance for R1
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CMA(MD)No.862 of 2014
JUDGMENT
The appellants filed this appeal to set aside the Judgment and
decree dated 01.08.2007 in MCOP.No.241/2003 on the file of the Motor
Accident Claims Tribunal, III Additional District and Sessions Court
(PCR), Madurai.
2. On 12.07.2002, the deceased Ramanathan was riding a Hero
Honda motorcycle bearing Registration No.TN 63 C 6969 on Madurai –
Ramanathapuram main road near Manalut, in front of Vaigai Vinayagar
Temple in Sivagangai District. At about 01.00 hour, a car bearing
Registration No.TN 59 Q 0333 came in a rash and negligent manner and
dashed against the motorcycle, as a result of which, the deceased was
thrown off from the motorcycle, sustained grievous injuries and died in
the Hospital.
3. The first appellant is the wife of the deceased, the second and
third appellants are the daughters and the fourth appellant is the mother
of the deceased. They filed MCOP.No.241/2003 before the Motor
Accident Claims Tribunal, III Additional District and Sessions Court
(PCR), Madurai claiming compensation for the demise of Ramanathan.
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CMA(MD)No.862 of 2014
4. The Motor Accident Claims Tribunal, III Additional District and
Sessions Court (PCR), Madurai after analysing the oral and documentary
evidences, dismissed the MCOP on the ground that the claimants have
failed to prove the fact that the Tata Sumo car bearing Registration No.
TN 59 Q 0333 was involved in the accident. Aggrieved over the
dismissal order, the appellants/claimants have filed this appeal.
5. The learned counsel appearing for the appellants submitted that
the Tribunal failed to consider the evidence of one Sangaiah, PW2, who
is an eye witness to the accident. Ex.P2, Charge Sheet and Ex.P5, copy
of the Judgment in CC.No.402/2002 on the file of the Additional District
Munsif and Judicial Magistrate, Manamadurai, show that the driver of
the Tata Sumo car pleaded guilty before the Criminal Court and paid fine
amount. Therefore, the accident occurred only due to the negligence of
the driver of the Tata Sumo car and hence, liability should be fixed on the
owner and insurer of the car.
6. The learned counsel appearing for the second respondent drew
the attention of this Court to the paragraphs 13.3 and 13.4 of the
Judgment of the Apex Court in the case of Reshma Kumar and Others vs.
Madan Mohan and Another reported in (2013) 9 Supreme Court Cases
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CMA(MD)No.862 of 2014
65 and contended that it is necessary for the appellants/claimants to
prove the negligence on the part of the owner or driver of the vehicle. In
the present case, the Tribunal after analysing the evidences and
documents on record, rightly held that the appellants/claimants have
failed to prove the involvement of vehicle in the accident. Hence, prayed
for dismissal of the appeal.
7. A perusal of the First Information Report, Ex.P1 shows that an
unknown vehicle was involved in the accident. The complainant was not
examined on the side of the appellants/claimants. As per the First
Information Report, the complainant came to know about the accident
only by the information given by one Sekar and he was also not
examined. One Sangaiah, who is alleged to be an eye witness to the
accident was examined as PW2 before the Tribunal, but, his name was
not mentioned in the First Information Report. As per the case of
prosecution, the Tata Sumo Car came on the opposite direction of the two
wheeler and dashed against the two wheeler. However, as per the
evidence of PW2, the Car hit the two wheeler from behind. The
appellants/claimants have stated that the driver of the car pleaded guilty
before the Criminal Court and also paid fine amount. In the decision
rendered by the Division Bench of the Principal Seat of this Court in
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CMA(MD)No.862 of 2014
New India Assurance Company Limited, Udumalpet Town vs.
K.Rameshkumar and others reported in 2011 (2) TN MAC 78 (DB), in
paragraphs 21, 22 and 26 it is held as follows.
"21.In the case on hand, the driver viz., the
2nd respondent pleaded guilty before the
Criminal Court and his confession was relied
upon by the Tribunal while fastening the
negligence on him. In the above referred
judgments, this Court categorically held that the
confession made by the Tribunal before a
Criminal Court can be relied upon by the Motor
Accidents Claims Tribunal while fixing his
negligence. In the present case, since the 2nd
respondent/ driver pleaded guilty before the
Criminal Court, the Tribunal held that the 2nd
respondent was driving the motor cycle in a rash
and negligent manner and was solely responsible
for the accident.
22.Though it is clear that the confession
made by the driver before a Criminal Court can
be relied upon by the Tribunal while considering
the issue of negligence, in the present case,
according to statement made by the 1st
respondent to the Doctor, the accident occurred
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CMA(MD)No.862 of 2014
on 01.05.2002 while he was standing near a bus
stop with his friends. R.W.2, the Doctor attached
to Nankem Hospital, Coonoor deposed that the
claimant came for treatment for injuries
allegedly sustained by him by falling down from
the motor cycle when he was travelling in the
Coonoor-Kothagiri road and that after initial
treatment, the claimant was sent to the
Coimbatore hospital in an ambulance owned by
his hospital. This fact has not been considered by
the Tribunal.
23....
24....
25....
26.Considering all the discrepancies
mentioned above, a strong suspicion is raised
with regard to the very accident itself. However,
the 1st respondent/claimant has failed to dispel
the doubt and suspicion by adducing any
acceptable evidence...."
In the case on hand also, even though, the driver of the car pleaded guilty
before the Criminal Court, PW2 has given evidence which is in contrary
to the case of the prosecution. Hence, the evidence of PW2 is not an
acceptable one. As mentioned above, in the First Information Report, the
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CMA(MD)No.862 of 2014
offending vehicle was described as Unknown vehicle. Non examination
of the complainant and the informant Sekar is also fatal to the claim.
Further, a perusal of the Motor Vehicle Inspector's Report, Ex.P4 shows
that there was no damage to the car or the two wheeler. In the facts and
circumstances as a whole, it is doubtful as to whether the car is involved
in the accident or not.
8. The paragraphs 13.3 and 13.4 of the Judgment of the Apex
Court in the case of Reshma Kumar and Others vs. Madan Mohan and
Another (cited supra), relied on by the learned counsel for the second
respondent is extracted hereunder.
"13.3. The peculiar feature of Section 163A is
that for a claim made thereunder, the claimants are
not required to plead or establish that the death or
permanent disablement in respect of which the
claim has been made was due to any wrongful act
or neglect or default of the owner or owners of the
vehicle concerned. The scheme of Section 163A is a
departure from the general principle of law of tort
that the liability of the owner of the vehicle to
compensate the victim or his heirs in a motor
accident arises only on the proof of negligence on
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CMA(MD)No.862 of 2014
the part of the driver. Section 163A has done away
with the requirement of the proof of negligence on
the part of the driver of the vehicle where the victim
of an accident or his dependants elect to apply for
compensation under Section 163A....
13.4. On the other hand, by making an
application for compensation arising out of an
accident under Section 166 it is necessary for a
claimant to prove negligence on the part of the
driver or owner of the vehicle. The burden is on the
claimant to establish the negligence on the part of
the driver or owner of the vehicle and on proof
thereof, the claimant is entitled to compensation."
As per the above Judgment, it is necessary for the claimant to prove
negligence on the part of the driver or owner of the vehicle, to claim
compensation. In the present case, the appellants/claimants have failed
to prove beyond doubt that the Tata Sumo car bearing Registration
No.TN 59 Q 0333 was involved in the accident by adducing acceptable
evidence. Hence, the owner of the car and the insurer of the car are not
liable to pay compensation to the appellants/claimants. The Tribunal has
rightly dismissed the claim petition. This Court finds no valid reason to
interfere with the finding of the Tribunal.
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CMA(MD)No.862 of 2014
9. Accordingly, this Civil Miscellaneous Appeal is dismissed. No
costs. The Judgment and decree dated 01.08.2007 in MCOP.No.
241/2003 on the file of the Motor Accident Claims Tribunal, III
Additional District and Sessions Court (PCR), Madurai is hereby upheld.
25.11.2021
Index : Yes/No
Internet : Yes/No
mbi
Note : In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
The Motor Accident Claims Tribunal,
III Additional District and Sessions Court (PCR),
Madurai
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CMA(MD)No.862 of 2014
S.ANANTHI, J.
mbi
CMA(MD)No.862 of 2014
25.11.2021
https://www.mhc.tn.gov.in/judis
