Madras High Court
K.Palanisamy vs M.Mathiyalagan on 8 August, 2022
C.M.A.No.1241 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.1241 of 2021
1.K.Palanisamy
2.Anjalam .. Appellants
Vs.
1.M.Mathiyalagan
2.New India Assurance Company Limited,
Sethu Krisna Trade Center,
Trichy Main Road,
Gugai,
Salem – 636 006.
3.M/s. Reliance G.I. Co. Ltd.,
Sri Lakshmi Complex, 1st Floor,
Barathi Street, Omalur main Road,
Swarnapuri,
Salem – 4. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
03.11.2020, made in M.C.O.P.No.74 of 2019, on the file of the Motor
Accident Claims Tribunal, Special District Court, Salem.
For Appellants : Mr.C.Prakasam
https://www.mhc.tn.gov.in/judis
1/12
C.M.A.No.1241 of 2021
for M/s.Karan and Uday
For R1 : No appearance
For R2 : Mr.K.Vinod
For R3 : Mrs.C.Bhuvanasundari
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.)
This Civil Miscellaneous Appeal has been filed by the appellants /
claimants challenging the dismissal order passed by the Tribunal in the
award dated 03.11.2020, made in M.C.O.P.No.74 of 2019, on the file of
the Motor Accident Claims Tribunal, Special District Court, Salem.
2.The appellants are the claimants in M.C.O.P.No.74 of 2019, on
the file of the Motor Accident Claims Tribunal, Special District Court,
Salem. They filed the said claim petition, claiming a sum of
Rs.25,00,000/- as compensation for the death of one P.Mohanraj, who
died in the accident that took place on 22.04.2018.
3.According to the appellants, on 22.04.2018 at about 13.45 hours
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
while the deceased P.Mohanraj was riding the motorcycle bearing
Registration No.TN 90 B 6400 on the Vellalakundam – Veppilaipatty
road near Arasamaram bus stop, the rider of the two wheeler bearing
Registration No.TN 54 C 5784, who was riding the two wheeler from the
opposite direction in a rash and negligent manner at high speed, dashed
against the motorcycle driven by the said P.Mohanraj and caused the
accident. In the accident, the said P.Mohanraj died on the spot and
immediately he was taken to Government MKMC Hospital, Salem for
postmortem. Therefore, the appellants filed the above said claim petition
claiming a sum of Rs.25,00,000/- as compensation against the
respondents, being the owner and insurer of the motorcycle bearing
Registration No.TN 54 C 5784 and the insurer of the motorcycle driven
by the deceased respectively.
4.The 1st respondent, being the owner of the motorcycle bearing
Registration No.TN 54 C 5784 remained exparte before the Tribunal.
5.The 2nd respondent-insurer of the motorcycle bearing Registration
No.TN 54 C 5784 filed counter statement and denied all the averments
made by the appellants in the claim petition. This respondent denied the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
manner of accident as alleged by the appellants. According to 2nd
respondent, the deceased P.Mohanraj was riding the motorcycle without
wearing helmet from Vellalakundam – Veppilaipatty road at high speed
without following any traffic rules and while nearing Arasamaram bus
stop, he lost control and dashed against the two wheeler bearing
Registration No.TN 54 C 5784 which was coming from the opposite
direction and invited the accident. In the accident, the rider of the
motorcycle bearing Registration No.TN 54 C 5784 died on the spot. The
F.I.R. was registered against the deceased P.Mohanraj by the Inspector of
Police, Valappady Police Station in Cr.No.128 of 2018. The accident has
occurred only due to the negligence on the part of the deceased
P.Mohanraj and he is the tort feasor. Therefore, the appellants can claim
compensation only against the 3rd respondent, who is the insurer of the
motorcycle driven by the deceased. As per the final report, the case was
treated as charges abated and hence, the 2nd respondent is not liable to
pay any compensation to the appellants. The appellants have to prove that
the deceased was possessing valid driving license to drive the motorcycle
on the date of accident. Further, the appellants have to prove that they are
the legal heirs of the deceased. The 2nd respondent denied the age,
avocation and income of the deceased. The quantum of compensation
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
claimed by the appellants are highly excessive and prayed for dismissal of
the claim petition as against the 2nd respondent.
6.The 3rd respondent-insurer of the motorcycle driven by the
deceased filed separate counter statement and denied all the averments
made by the appellants in the claim petition. The appellants have to prove
the manner of accident and that the said P.Mohanraj died in the accident
that occurred on 22.04.2018. The appellants have stated in the claim
petition that the accident has occurred only due to negligent driving by
the rider of the motorcycle bearing Registration No.TN 54 C 5784 and
hence, 3rd respondent is not liable to pay any compensation to the
appellants. The appellants are not the dependants of the deceased. As per
F.I.R., the deceased was shown as accused and being the tort feasor, the
appellants cannot be made liable for the negligence of the deceased and
the appellants are entitled only Personal Accident cover for the death of
the deceased as owner driver to the extent of Rs.1,00,000/-. The
appellants have to submit a claim form to the office of 3 rd respondent for
Personal Accident claim. The 3rd respondent denied the age, avocation
and income of the deceased. In any event, the quantum of compensation
claimed by the appellants are excessive and prayed for dismissal of the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
claim petition as against the 3rd respondent.
7.Before the Tribunal, the 1st appellant examined himself as P.W.1,
one Mahalingam, eyewitness to the accident was examined as P.W.2 and
15 documents were marked as Exs.P1 to P15. The respondents 2 & 3
marked the copy of the Insurance Claim Status of the motorcycle bearing
Registration No.TN 90 B 6400 as Ex.R1.
8.The Tribunal considering the pleadings, oral and documentary
evidence, dismissed the claim petition on the ground that the manner of
accident has not been proved as alleged by the appellants.
9.Against the said order of dismissal dated 03.11.2020, made in
M.C.O.P.No.74 of 2019 and for granting compensation, the appellants
have come out with the present appeal.
10.The learned counsel appearing for the appellants contended that
the accident occurred only due to rash and negligent driving by the rider
of the motorcycle bearing Registration No.TN 54 C 5784, who overtook
the auto and dashed on the motorcycle in which the deceased was riding.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
The F.I.R. was registered against the deceased based on the complaint
given by the uncle of the rider of the motorcycle bearing Registration
No.TN 54 C 5784 and he was not an eyewitness to the accident. Due to
the influence by the villagers, the Police registered a case against the
deceased. The contents of F.I.R. is not the criteria for fixing negligence.
The appellants have examined one Mahalingam eyewitness to the
accident as P.W.2, who deposed that the accident occurred only due to
rash and negligent driving by the rider of the motorcycle bearing
Registration No.TN 54 C 5784. The Tribunal did not accept the evidence
of P.W.2 based on Ex.P6/inquest report. Ex.P6 / inquest report recorded
under Section 174 of Criminal Procedure Code is like the statement
recorded under Section 161 of Criminal Procedure Code. The inquest
report has to be proved by letting in oral evidence. Without oral evidence,
it has no evidentiary value. The respondents have not let in any contra
evidence to the evidence of P.W.2. The proceedings under Motor Vehicles
Act is summary in nature and it is sufficient to decide whether any
preponderance of probability as to the manner of the accident as stated in
the claim petition and prayed for allowing the appeal.
11.Though notice has been served on the 1st respondent and his
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
name is printed in the cause list, there is no representation for him, either
in person or through counsel.
12.The learned counsel appearing for the 2nd respondent-New India
Assurance Company Limited contended that the accident has occurred
only due to the negligence on the part of the deceased P.Mohanraj. The
legal heirs of the rider of the motorcycle bearing Registration No.TN 54 C
5784 filed claim petition in M.C.O.P.No.536 of 2019, in which the 1 st
appellant herein viz., K.Palanisamy was the 1st respondent therein. In the
said claim petition, the 1st appellant entered appearance, filed vakalat and
counter statement. Subsequently, the said M.C.O.P.No.536 of 2019 was
referred to the Lok Adalat and before the Lok Adalat, the claimants in
said M.C.O.P.No.536 of 2019, who are the legal heirs of the rider of the
motorcycle bearing Registration No.TN 54 C 5784 and 1 st appellant
herein and the 3rd respondent-insurer of the motorcycle bearing
Registration No.TN 90 B 6400 driven by deceased P.Mohanraj, have
entered into a compromise and settled the matter and an award was
passed in the Lok Adalat. Having entered appearance and filed counter
statement, the 1st appellant did not prosecute the case further and deny
the said award passed in the Lok Adalat. Having accepted the negligence
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
of his son, now the appellants are not entitled to claim any compensation
from the 2nd respondent-New India Assurance Company Limited and
prayed for dismissal of the appeal.
13.The learned counsel appearing for the 3rd respondent – Reliance
General Insurance Company made her submissions in support of the
award passed by the Tribunal and prayed for dismissal of the appeal
against the 3rd respondent.
14.Heard the learned counsel appearing for the appellants, learned
counsel appearing for the 2nd respondent as well as the learned counsel
appearing for the 3rd respondent and perused the entire materials on
record.
15.From the materials on record, it is seen that two motorcycle
were involved in the accident and it is head on collusion. According to
appellants, the accident has occurred only due to rash and negligent
driving by the rider of the motorcycle bearing Registration No.TN 54 C
5784, who drove the motorcycle in a rash and negligent manner and
dashed against the motorcycle driven by the deceased P.Mohanraj. To
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
substantiate their case, the appellants examined one Mahalingam,
eyewitness to the accident as P.W.2, who deposed that the accident has
occurred only due to rash and negligent driving by the rider of the
motorcycle bearing Registration No.TN 54 C 5784. The respondents have
not let in any evidence to prove their case that the accident has occurred
only due to rash and negligent driving by deceased. The F.I.R. was
registered against the deceased and final report was filed as charges
abated. The contents in the F.I.R. is not the sole criteria for fixing the
negligence. The same can be taken into consideration along with other
materials to decide the negligence. In the present case, P.W.1 is not an
eyewitness. One Varatharajan, who gave complaint also is not an
eyewitness and he is uncle of rider of the motorcycle bearing Registration
No.TN 54 C 5784. Apart from P.W.2, no other eyewitness was examined.
Whether evidence of P.W.2 for fixing the negligence can be relied on was
considered by the Tribunal along with Ex.P6/inquest report. The inquest
was conducted before the Panchayatars and it was held that the accident
has occurred only due to negligence by the deceased P.Mohanraj. In the
said inquest report, P.W.2 / Mahalingam signed as 1st Panchayatar. Ex.P6
was produced and marked by the appellants and P.W.2 has not stated
anything about Ex.P6 in his evidence. It is not the case of P.W.2 or the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
appellants that P.W.2 was forced to sign the inquest report / Ex.P6, as
rider of the motorcycle bearing Registration No.TN 54 C 5784 was
resident of the said village. The Tribunal considering the evidence of
P.W.2, which is contrary to Ex.P6, held that evidence of P.W.2 cannot be
considered as a version of an eyewitness. The reason given by the
Tribunal is proper and valid. There is no error. Further the appellants
have not denied that in M.C.O.P.No.536 of 2019, filed by the legal heirs
of the rider of the motorcycle bearing Registration No.TN 54 C 5784, the
matter was settled by fixing the negligence on the part of the deceased
P.Mohanraj, who is the son of the appellants.
16.For the above reasons, this Civil Miscellaneous Appeal is
dismissed confirming the award of the Tribunal dated 03.11.2020, made
in M.C.O.P.No.74 of 2019. No costs.
(V.M.V., J) (S.S., J)
08.08.2022
krk
Index : Yes / No
Internet : Yes / No
V.M.VELUMANI, J.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1241 of 2021
and
S.SOUNTHAR, J.
krk
To
1.The Special District Judge,
Motor Accidents Claims Tribunal,
Salem.
2.The Section Officer,
VR Section,
High Court,
Madras.
C.M.A.No.1241 of 2021
08.08.2022
https://www.mhc.tn.gov.in/judis
