M/S.Bharti Axa General Insurance ... vs Periyasamy
2022 Latest Caselaw 8373 Mad

                                                                           C.M.A.No.3909 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 21.04.2022

                                                    CORAM:

                                     THE HONOURABLE Ms. JUSTICE P.T.ASHA

                                              C.M.A.No.3909 of 2019
                                                       and
                                              C.M.P.No.22298 of 2019

                  M/s.Bharti AXA General Insurance Co. Ltd.,
                  First Floor, Divya Trade Centre,
                  No.II, Brindavan Road, Fairlands,
                  Salem-636 016.                                        ... Appellant

                                                       vs.

                  1.Periyasamy

                  2.Thangavelu                                           ... Respondents

                  PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                  Motor Vehicles Act, 1988 against the Award and Decree dated 31.01.2017
                  in M.C.O.P.No.1462 of 2014 on the file of the Motor Accident Claims
                  Tribunal, Special Sub-Court No.2, Salem.

                            For Appellant       : Mr.S.Arun Kumar
                            For Respondents     : Mr.S.P.Yuvaraj [R1]
                                                  R2 – Served No Appearance




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https://www.mhc.tn.gov.in/judis
                                                                                C.M.A.No.3909 of 2019

                                                 JUDGMENT

The Insurance Company aggrieved by the award passed by the Motor

Accident Claims Tribunal, Special Sub-Court No.2, Salem in

M.C.O.P.No.1462 of 2014 is the appellant before this Court.

2. The appellant's grievance is that they have been made liable to pay

compensation for the accident though the lorry that is insured with them is

not involved in the accident. It is their contention that the claim is a fake

claim.

3. The facts in brief are as follows:

The claimant/1st respondent herein has filed the above claim petition

claiming compensation for a sum of Rs.11,45,000/- restricted to

Rs.10,00,000/- for the accident that had occurred on 24.11.2013 at about

11.00 hours. It is the petitioner's case that on the said date, when the

petitioner/claimant was riding his TVS STAR DLX from Salem to

Dharmapuri National Highway, as he came near the Pannapatti Branch

Road, the 1st respondent's vehicle namely a mini Lorry bearing Reg.No.TN

30 Z 2788 came from the opposite direction, in a rash and negligent manner

https://www.mhc.tn.gov.in/judis C.M.A.No.3909 of 2019

and in high speed. On account of the speed, the lorry dashed against the

petitioner/claimant and on account of the impact, the petitioner/claimant

thrown out and fell down on the road and sustained head injury, commuted

fracture and multiple grievous injuries all over the body. Therefore, he was

came forward with the claim petition.

4. The 2nd respondent/Insurance Company, who is the appellant

herein had filed the counter denying the very accident and contending that

the petitioner/claimant who was carrying a bundle of banana leaf on his

motorcycle had fallen down on his own account from the motorcycle. The

lorry bearing Reg.No.TN 30 Z 2788 was not at all involved in the alleged

accident. With a view to grabbing a compensation, the false complaint has

been lodged with the police two days after the alleged accident. The

appellant would further submit that after investigation, the police has closed

the case as mistake of fact. The appellant/Insurance Company had further

contended that it appears that the 1st respondent and the claimant/petitioner

had colluded to invent this claim. Therefore, the appellant is not liable to

compensate the petitioner/claimant or indemnify the 1st respondent.

https://www.mhc.tn.gov.in/judis C.M.A.No.3909 of 2019

5. The Tribunal below however, choose to hold that the accident had

taken place and the same had occurred on account of the rash and negligent

driving of the lorry. The Tribunal had not considered the evidence of RW1

or Ex.R1 stating that the final report has not indicated who has been

investigated and what was the evidence in this regard. Ultimately, the

2nd respondent / Insurance Company was directed to pay a sum of

Rs.2,16,242/- to the claimant/petitioner.

6. Aggrieved by this order, the appellant/Insurance Company has

filed this appeal before this Court.

7. Heard the learned counsel on either side and perused the records.

8. A perusal of the records would indicate that the 1st respondent is

none other than the relative of the petitioner/claimant. The accident had

occurred on 24.11.2013, but, the complaint has been lodged only two days

later. The vehicle namely the lorry was not submitted for inspection to

obtain the Motor Vehicle Inspector's report. That apart, the police had also

closed the F.I.R., as mistake of fact. Therefore, holistically taking into

https://www.mhc.tn.gov.in/judis C.M.A.No.3909 of 2019

consideration the above circumstances, it is distinctly clear that the accident

has not occurred in the manner in which it has been stated by the

petitioner/claimant. This is the case where the accident and the injuries

sustained by the petitioner/claimant was not on account of the use of the 1st

respondent's lorry. The 1st respondent's lorry was in no way connected with

the injuries sustained by the petitioner/claimant. This fact is further

highlighted by the fact that the police had closed the First Information

Report as mistake of fact. That apart, the owner of the lorry which is

alleged to have caused the accident is none other than the relative of the

claimant. He has not been examined as a witness. Further he has not

reported the accident to the Insurance Company. In these circumstances,

the order of the Tribunal below in coming to the conclusion that the 1st

respondent's lorry was involved in the accident and injuries are sustained by

the petitioner/claimant was on account of this accident is totally erroneous

and liable to be set aside.

9. Considering the fact that this Court holds that the 1st respondent's

lorry was not involved in the accident, there is no necessity to discuss on

the quantum awarded by the Tribunal.

https://www.mhc.tn.gov.in/judis C.M.A.No.3909 of 2019

10. In the result, this Civil Miscellaneous Appeal is allowed and the

Award and Decree dated 31.01.2017 passed by the Motor Accident Claims

Tribunal, Special Sub-Court No.2, Salem in M.C.O.P.No.1462 of 2014 is

set aside. No costs. Consequently, connected civil miscellaneous petition is

closed.

21.04.2022 Index : Yes/No Speaking / Non-speaking order ssn

https://www.mhc.tn.gov.in/judis C.M.A.No.3909 of 2019

To

1. The Motor Accident Claims Tribunal, Special Sub-Court No.2, Salem.

2. The Section Officer, V.R.Section, High Court of Madras, Chennai.

https://www.mhc.tn.gov.in/judis C.M.A.No.3909 of 2019

P.T.ASHA, J.,

ssn

C.M.A.No.3909 of 2019 and C.M.P.No.22298 of 2019

21.04.2022

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