The New India Assurance Co.Ltd vs Balamani
2022 Latest Caselaw 6784 Mad

                                                                          CMA No.2507 of 2018


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 01.04.2022

                                                      CORAM

                                   THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN

                                              C.M.A.No.2507 of 2018
                                                      and
                                              C.M.P.No.19147 of 2018

                     The New India Assurance Co.Ltd.,
                     482-483, 3rd Floor,
                     N.V.Chamber Building,
                     Near Power House Bus Stop,
                     Cross cut Road, Gandhipuram,
                     Coimbatore – 641 012                  ...             Appellant
                                                           Vs.
                     1.Balamani
                     2.Minor Kavipriya
                     3.Minor Gopika
                       Minors 2 and 3 rep.by next friend
                       Mother Balamani
                     4.Nachammal
                     5.Govindaraj                          ...             Respondents

                     Prayer: This Civil Miscellaneous Appeal has been filed under Section 173
                     of the Motor Vehicles Act, 1988, against the award and decree dated
                     08.06.2018 passed in M.C.O.P.No.725 of 2013, on the file of the Motor
                     Accident Claims Tribunal (Sub Judge), Dharapuram.



                     1/8


https://www.mhc.tn.gov.in/judis
                                                                              CMA No.2507 of 2018




                                             For Appellant    : Mr.R.Sivakumar

                                             For Respondent   : Mr.N.Ponraj
                                             Nos.1 & 2

                                             Respondent No.5 : Exparte


                                                        JUDGMENT

The second defendant/Insurance Company in MCOP.No.725 of 2013

on the file of the Motor Accident Claims Tribunal is the appellant herein.

They are aggrieved by the grant of compensation for the death of

Kalliyappan @ Kallimuthu, who unfortunately died in a Motor Vehicle

Accident on 03.03.2013. The appellant herein deny their liability to pay

compensation and it was urged during the course of hearing of this appeal

that the Tribunal had directed the appellant to pay the compensation,

though the tribunal had found that the accident was caused only owing to

the negligence of Kalliyappan @ Kallimuthu, who was driving the motor

vehicle.

https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018

2.A further examination of the facts reveal that on 03.03.2013, at

around 7.45 p.m., when Kalliyappan @ Kallimuthu was driving a

motorcycle bearing registration No.TN-37-L-7452 from Pongalur to

Thumpalapatti, a bicycle was said to have crossed the road, which

necessitated Kalliyappan @ Kallimuthu to apply the brakes, owing to

which, the motorcycle capsized and he fell down and owing to the injuries,

died on the spot. Claiming compensation for the said accident, the claim

petition has been filed.

3.During the course of trial before the Tribunal, the first claimant

Balamani examined herself as PW1 and Balu @ Balasubramaniam, an eye

witness to the accident was examined as PW2. They also marked 14

documents as Exs.P1 to P14. Ex.P9 is the copy of the Insurance Policy and

Ex.P1 is the copy of the First Information Report.

4.On considering the documentary and oral evidence presented before

it, the Tribunal first examined as issue No.1, as to the manner in which the

https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018

accident occurred.

5.In that connection, the Tribunal had to necessarily consider the

Final Report filed by the police pursuant wherein, it had been held that the

accident occurred only due to the negligent driving of Kalliyappan @

Kallimuthu. The exact words of the Tribunal in this connection are as

follows:

“,t;thW k/rh/M/6 kw;Wk; v/k/rh/M/1 Mfpatw;iw ghh;f;Fk;nghJ.

tpgj;jhdJ ,we;Jnghd eghpd; ftdf;Fiwthy; Vw;gl;Ls;sJ vd;gJ

epU:gzkhfpwJ/ vdnt tpgj;jpw;F ,we;J nghd egnu fhuzk; vd;W 1tJ

gpur;ridf;F ,j;jPh;g;ghak; tpil fhz;fpwJ/”

6.A specific finding had been given by the Tribunal that the accident

had occurred only due to the negligence of the deceased Kalliyappan @

Kallimuthu.

https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018

7.Thereafter, the Tribunal went on to proceed to determine the

compensation to be paid and more importantly as to who has to pay the

compensation. It must be pointed out that in the claim petition, the

occupation of Kalliyappan @ Kallimuthu was stated as Business and

Agriculture and with respect to the name and address of the employer, a

declaration was given that he was self employed. However, when the claim

petition was presented before the Tribunal duly verified by the claimant that

the facts stated or true, the Tribunal, for reasons best known, had taken a

tangential direction and proceeded to observe that Kalliyappan @

Kallimuthu was employed under the first respondent/owner of the

motorcycle and on that basis, placed vicarious obligation on the insurance

company/insurer of the motocycle to pay compensation. This aspect is

questioned very seriously by Mr.Sivakumar, learned counsel for the

appellant, who stated that such a conclusion can never be arrived at since

there was no basis. The first respondent/ owner of the motorcycle had not

been examined as a witness to state that Kalliyappan @ Kallimuthu was

employed under him. If there was a relationship of employer and employee

https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018

and the employee had suffered an accident during the course of

employment, then the compensation would be under the Workmens

Compensation Act and approaching the Motor Accident Claims Tribunal on

the basis that the deceased was self employed and doing agricultural

business cannot be a true version.

8.I hold that the Tribunal had misdirected itself to hold that the

insurance company was liable to pay the compensation to be awarded. The

said finding has to be interfered with.

9.In view of that fact, the issue of actual compensation to be granted

cannot be now examined by this Court. The finding of the Tribunal that the

deceased was working under the first respondent is specifically set aside.

The finding is also per se perverse and opposed to the evidence available.

The insurance company has now been forced to file this appeal and litigate

before this Court. Therefore, the present appeal is allowed and the judgment

of the tribunal dated 08.06.2018 is set aside. No costs. Consequently,

connected miscellaneous petition is closed.

https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018

If any deposit had been made at the time of admission of the appeal,

then the appellant is directed to withdraw the same along with accrued

interest.

                     Index:Yes/No
                     Internet:Yes/No
                     sms                                                           01.04.2022

                     To

1.The Motor Accident Claims Tribunal (Sub Judge), Dharapuram.

2.The New India Assurance Co.Ltd., 482-483, 3rd Floor, N.V.Chamber Building, Near Power House Bus Stop, Cross cut Road, Gandhipuram, Coimbatore – 641 012.

https://www.mhc.tn.gov.in/judis CMA No.2507 of 2018

C.V.KARTHIKEYAN,J

sms

C.M.A.No.2507 of 2018 and C.M.P.No.19147 of 2018

01.04.2022

https://www.mhc.tn.gov.in/judis