Madras High Court
The Divisional Manager vs Bakkiyalakshmi on 5 April, 2022
C.M.A.No.805 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.805 of 2017
and
C.M.P.No.4162 of 2017
The Divisional Manager,
United India Insurance Co. Ltd.,
DO.No.13A, Nethaji Road,
Cuddalore – 607 001. ... Appellant
Vs.
1.Bakkiyalakshmi
2.P.Banupriya
3.T.Babu
4.S.Bharathi
5.N.Settu
6.Rukkumani
7.A.Rajendran
... Respondents
1/10
https://www.mhc.tn.gov.in/judis
C.M.A.No.805 of 2017
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988 against the award and decree dated 25.02.2015 made in MCOP
No.2800 of 2014 on the file of the Motor Accident Claims Tribunal, Principal
District Judge, Cuddalore.
For Appellant : Mr.S.Arunkumar
For Respondents : Mrs.Ramya V.Rao for
Mr.T.Dharani for R1 to R6
Mr.A.Saravanan for R7
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
This appeal is directed against the award passed by the Motor Accident
Claims Tribunal (Principal District Judge), Cuddalore in MCOP No.2800 of 2014
dated 25.02.2015.
https://www.mhc.tn.gov.in/judis
C.M.A.No.805 of 2017
2.The case of the claimants before the Tribunal was that the husband of the
first claimant, father of the claimants 2 to 4 and son of the claimants 5 and 6,
namely, Thulasingam, aged about 45 years, died in the accident on 12.08.2014.
According to them, on the faithful day, the deceased was walking from east to
west along with another person on the extreme left side of the road at Pudupettai
Bazaar, opposite to Wood shop of Ramamoorthy. At that time, a Tipper Lorry
bearing Reg.No.TN-18-F-6999 which was owned by the 7th respondent and
insured with the second respondent, came in a great speed and hit against the
deceased. In the impact, he died on the spot. It is further case of the claimants
that the deceased was working as Motor Operator in Thorapadi Town Panchayat
and earning Rs.20,000/- per month. Since the accident had occurred due to the
rash and negligent driving of the driver of the Tipper lorry, both the owner as well
as the insurer of the lorry are liable to pay compensation of Rs.55,00,000/-.
3.In the counter filed by the owner of the Tipper Lorry/7th respondent
herein, it has been stated that the vehicle was insured with the appellant and the
policy number is 012382/31/02/00008658 and it was valid from 14.03.2014 to
https://www.mhc.tn.gov.in/judis
C.M.A.No.805 of 2017
13.03.2015. Since the policy was inforce at the time of accident, the Insurance
Company is liable to pay entire award amount to the claimants.
4.The appellant filed counter disputing the allegation and averments made
in the claim petition. It is also stated that the claim is excessive and exorbitant,
hence, the claim petition is liable to be dismissed.
5.During the Trial, on behalf of the claimants, three witnesses gave
evidence and marked 10 documents. The appellant did not examine any witness,
but Ex.1 and Ex.3 were marked.
6.On appreciation of evidence adduced by the parties, the Tribunal came to
the conclusion that the accident occurred due to the negligence of the driver of
the Tipper Lorry and awarded compensation of Rs.29,09,060/- together with
interest at the rate of 6% per annum. Challenging the said award, the present
appeal has been filed.
https://www.mhc.tn.gov.in/judis
C.M.A.No.805 of 2017
7.Mr.S.Arunkumar, learned counsel appearing for the appellant/Insurance
Company would submit that though the appellant was not able to demonstrate the
policy mentioned in the counter, it is not relate to the offending vehicle viz.,
Tipper Lorry bearing Reg.No.TN-18-F-6999, but subsequently, on investigation,
it was found out that the said policy was issued to the vehicle bearing
Reg.No.TN-45-X-5396 owned by one Radhakrishnan. Since the appellant found
that there was bogus claim and a fabricated document was produced before the
Tribunal to fasten liability on the appellant, the application in CMP No.7353 of
2017 under Order 41 Rule 27 of C.P.C was filed to receive the additional
documents. It is further stated that this Court, by order dated 04.12.2019,
directed the Tribunal to receive the additional documents and evidence and render
findings on those aspects. Since the Tribunal found that the policy produced by
the insured was bogus, the appellant has to be exonerated from the liability in
paying the compensation to the claimants.
https://www.mhc.tn.gov.in/judis
C.M.A.No.805 of 2017
8.Per contra, the learned counsel appearing for the 7th respondent
Mr.T.Dharani would argue that the finding on genuiness of the policy was
rendered by the Tribunal without considering the fact that the 7th respondent had
already paid premium through the Agent and despite producing the original
policy. It is the submission of the learned counsel that the burden is upon the
insurance company to prove that what promoted it to issue second policy that
too, commencing from 14.03.2014 to 13.03.2015, when the earlier policy itself
expires only on 31.05.2014.
9.In this regard, we have heard the learned counsel appearing for the
claimants Mrs.Ramya V.Rao.
10.We have carefully considered the submissions of the learned counsels
appearing for the parties and perused the materials available on record.
https://www.mhc.tn.gov.in/judis
C.M.A.No.805 of 2017
11.In the instant case, the original petition was filed by the legal heirs of
the deceased Thuasingam, who died in the accident on 12.08.2014. There is no
dispute that the claimants are the legal heirs of the deceased. In the counter filed
by the 7th respondent/insured, it has been clearly stated that the offending vehicle
had coverage from 14.03.2014 to 13.03.2015 and the policy number was
012382/31/02/00008658. The said policy was marked as Ex.P.10. During the
pendency of the appeal, as afore mentioned, the appellant had taken out the
application to mark the additional documents and the said petition was allowed
on 04.12.2019. Subsequently, a direction was issued to the Tribunal to render
findings on the additional documents produced by the appellant. When the matter
was remanded back to the Tribunal, additional evidence was given by the
Insurance Company as R.W.1. He has categorically stated that for the vehicle
owned by the 7th respondent bearing Reg.No.TN-18-F-6999 earlier policy, which
was marked as Ex.R.1, was inforce from 01.06.2013 to 31.05.2014 and it was a
package policy. The policy in dispute was taken for the period from 14.03.2014
to 13.05.2015 and the same was marked as Ex.P.10.
https://www.mhc.tn.gov.in/judis
C.M.A.No.805 of 2017
12. It is pertinent to note that the 7th respondent/insured did not choose to
enter into the witness box to explain as to why he has taken the second policy
before expiry of the earlier policy. On the other hand, the appellant had produced
premium Register to establish that the policy in dispute was in fact issued to one
Radhakrishnan for the vehicle bearing Reg.TN-45-X-5396.
12.The contention of the learned counsel appearing for the 7th respondent
that it is for the Insurance Company to explain why they have issued the policy
before expiry of the earlier policy, cannot be countenanced for the simple reason
that the onus lies on the insured. The Tribunal has rendered finding that the
policy in dispute is the package policy. We accept the said finding. So, while
confirming the quantum awarded in favour of the claimants, the liability fastened
on the appellant is set aside and the appellant/Insurance Company is exonerated
from its liability. The claimants can proceed against the owner of the Tipper
Lorry bearing Reg.No.TN-18-F-6999 to recover the award amount.
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C.M.A.No.805 of 2017
13.In the light of the above finding, this Civil Miscellaneous Appeal is
allowed. No costs. Consequently, connected miscellaneous petition is closed.
[M.K.K.S.,J.] [V.S.G.,J.]
05.04.2022
skn
Index : Yes/No
Speaking Order :Yes/No
To
1.The Motor Accident Claims Tribunal,
Principal District Judge, Cuddalore.
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.805 of 2017
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
skn
JUDGMENT MADE IN
C.M.A.No.805 of 2017
and
C.M.P.No.4162 of 2017
05.04.2022
https://www.mhc.tn.gov.in/judis
