Madras High Court
The National Insurance Company vs N.Pazhaniyammal on 23 February, 2022
CMA.No.1165 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2022
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
Civil Miscellaneous Appeal No.1165 of 2014
The National Insurance Company, Ltd.,
No.165, Nethaji Road,
Manjakuppam, Cuddalore – 607 001. ... Appellant
..Vs..
1. N.Pazhaniyammal
2. N.Srimathi
3. N.Sridhar
4. N.Chinna Ponnu [died]
5. Nirmal Kumar Metha ... Respondents
Prayer: This Civil Revision Petition has been filed under Section 173 of the
Motor Vehicle Act against the judgement and Decree dated 24.09.2013
made in M.C.O.P.No.1474 of 2010 on the file of the Motor Accident Claims
Tribunal, [Principal District Judge], Cuddalore.
1/12
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CMA.No.1165 of 2014
For Appellant : Mr.S.Vadivel
For respondents : Ramya V Rao – R1 to R3
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the
judgement and Decree dated 24.09.2013 made in M.C.O.P.No.1474 of 2010
on the file of the Motor Accident Claims Tribunal, [Principal District
Judge], Cuddalore.
2. The case of the claimant before the Tribunal is that on 08.05.2010
at about 12.30 p.m., when the deceased Nagaraj was riding his bi-cyle from
north to south direction at his extreme left at Majakuppam, the first
respondent's two wheeler bearing registration No.PY -010 – U - 8896 came
from the opposite direction in a rash and negligent manner and dashed
against the deceased bicycle, due to which he sustained grievous injuries
and multiple fractures all over his body. He was immediately taken to the
Government Hospital, Cuddalore and then he was transferred to
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CMA.No.1165 of 2014
Government Hospital, Pondicherry and on 20.05.2010 at about 8.15 a.m. he
succumbed to his accidental injuries. His bi-cycle was completely damaged.
At the time of the accident, the deceased was hale and healthy and he was
aged about 44 years and working as a Milk Vendor and earning a sum of
Rs.10,000/- per month. The deceased was the only bread winner of the
family and due to the accident, the entire family lost their only bread winner
and is suffering for their livelihood. He lost his valuables in the accident
and more money was spent for his treatment. The claimants are the
dependants and legal heirs of the deceased. During the pendency of the
claim petition, the fourth claimant died on 21.09.2011 and there is no other
legal heir for the fourth claimant except the other claimants. The accident
had occurred due to rash and negligent act of the driver of the first
respondent's vehicle. Since, the first respondent being the owner of the
offending vehicle and the second respondent being the insurer of the said
vehicle, both are jointly and severally liable to pay the compensation to the
claimants. Hence, the claimants had claimed a compensation of
Rs.25,00,000/- from the respondents with interest and costs.
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CMA.No.1165 of 2014
3. The first respondent remained exparte before the Tribunal.
4. The second respondent filed a counter stating that the petition is
not maintainable in law and on facts. Denying that the deceased met with
the road accident on 08.05.2010 and died leaving behind the claimants as
his legal heirs and his bi-cycle was completely damaged, it is stated that the
final report filed before the Judicial Magistrate No.II, Cuddalore, indicate
that the case has been closed as 'mistake of fact'. Since, there is no accident
as stated in the claim petition, this respondent is not liable to pay any
compensation to the claimants. The first respondent's vehicle was not
involved in the alleged accident. There was one day delay in filing the
complaint and it is only an after thought and subsequently a false complaint
was made against the first respondent, in order to get unlawful gain, if
possible. The age, avocation, income of the deceased are all denied. The
first respondent's vehicle was not insured with this respondent and driver of
the first respondent was not holding valid and effective driving license, F.C.
and permit at the time of the accident. The driver of the first respondent is
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CMA.No.1165 of 2014
no way responsible for the accident. Further, the claim of compensation is
highly excessive. Hence, the claim petition is liable to be dismissed with
costs.
5. The Court below after considering the pleadings, oral and
documentary evidence of both sides, awarded a sum of Rs.6,90,000/- under
the following heads :
S.No. Particulars Amount in Rs.
1. Life Dependency of the 6,30,000/-
claimants [Rs.45000/- x 14 =
6,30,000]
2. Loss of consortium to the first 20,000/-
petitioner
3. Love and affection to 2nd and 20,000/-
3rd claimants each Rs.10,000/-
4. Funeral expenses 10,000/-
5. Transport Expenses 10,000/-
Total 6,90,000/-
Aggrieved over the same, the appellant has filed this appeal before this
Court.
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CMA.No.1165 of 2014
6. The main contention of the appellant is that the Motor Accident
Claims Tribunal ought not to have relied on the evidence of P.W.2 and held
that the motor cycle bearing registration No.TN-01-U-8896 was not
involved in the accident. On the other hand the Motor Accident Claims
Tribunal ought to have believed the evidence of R.W.1 and accepted the
report filed by him along with enclosures. The reason given for rejecting
the evidence of R.W.1 is not sustainable. The Motor Accident Claims
Tribunal having believed the evidence of P.W.2 taken a different stand to
disbelieve the evidence of R.W.1. When both the above witnesses are
independent witnesses, the Tribunal had taken a discriminative view in
favour of the claimants in order to award compensation. The Tribunal
failed to see that the final report was filed by the police after thorough
investigation and after analyzing the evidence of persons concerning the
accident. In the said circumstances, the Tribunal ought not to have stated
that the Tribunal is not bound by the final report filed by the police.
7. It is the further contention of the appellant is that the Tribunal
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CMA.No.1165 of 2014
failed to consider that another motor cycle bearing Registration No.TN-05-
D-8787 was involved in the accident and the owner and the insurer were not
impleaded in the claim petition even after filing the counter. Hence, the
claim petition ought to have dismissed on the ground of non-joinder of
necessary parties. Further, the Tribunal failed to see that if at all P.W.2
witnessed the accident, he would have accompanied the injured to the
hospital or ought have given a police complaint and hence, the Tribunal
ought to have rejected the evidence of P.W.2. The Tribunal also failed to
see that the motor cycle belonging to the first respondent was brought into
the picture after taking one day time to lodge the First Information Report.
When such is the case, the Tribunal ought not to have expected the
appellant to examine the rider of the motor cycle belong to the first
respondent. But the Tribunal had taken an adverse inference against the
appellant for non-examination of the rider of the motor cycle belonging to
the firs respondent. Further the Tribunal had not at all discussed the
evidence and contents of Exhibits R1 to R5 and the same would go to show
that the Tribunal had taken a biased view in favour of the claimants. The
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CMA.No.1165 of 2014
appellant is questioning the award of the Tribunal on liability and the
appellant had already obtained permission under section 170 of the Motor
Vehicles Act and paid the amount as required under the statute. Hence,
prayed to set aside the award of the Tribunal.
8. The learned counsel for the second respondent would submit that
the tribunal, after considering both the oral and documentary evidence of
both sides, has awarded just compensation and hence, the well considered
award of the Court below needs no interference.
9. The main contention of the learned counsel for the appellant is that
as the First Information Report registered with regard to the accident has
been closed as 'mistake of fact', the Tribunal ought not have awarded any
compensation to the claimants. It is the further contention of the appellant
that the vehicle of the first respondent was not involved in the accident and
owner and driver of the vehicle which made the accident have not been
impleaded in this matter. A perusal of the records would reveal that the
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CMA.No.1165 of 2014
Tribunal after analysing the evidence of P.W.1, who is an independent
witnesses to the accident, has come to the conclusion that the accident
occurred due rash and negligent driving of the first respondent's vehicle.
The Tribunal further held that merely because P.W.2 has not given the
complaint and not accompanied the injured to the hospital, the same is not
sufficient to disprove the version of P.W.2. Since P.W.2 is not a close
relative of the deceased, there is no necessity for P.W.2 to give the
complaint about the accident and to accompany the injured person to the
hospital. Finally, the Tribunal has held that if really the first respondent's
vehicle's driver is not involved in the accident, he would have taken steps to
quash the First Information Report and the Final Report and rejected the
contentions of the second respondent.
10. It is to be noted that even if the investigation officer has referred
the case, it is not sufficient to accept the contention of the second
respondent. Further the second respondent has not adduced any rebuttal
evidence to establish that the first respondent's vehicle driver is not
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CMA.No.1165 of 2014
involved in the accident and he has not examined the first respondent to
prove his contentions. Therefore, non joinder of necessary parties is not
applicable to the facts of the present case. The Tribunal after analysing the
entire materials available on record has awarded just and reasonable
compensation. Therefore, this Court is of the opinion that there is no valid
ground to interfere with the award passed by the Tribunal. Hence, there is
no merits in this appeal and the same is liable to be dismissed.
11. In the result, the Civil Miscellaneous Appeal is dismissed. No
costs.
12. The appellant is directed to deposit the entire amount awarded by
the Tribunal, if not already deposited, together with interest at 7.5% per
annum from the date of the Claim Petition till the date of deposit, less the
amount, if any, already deposited to the credit of M.C.O.P.No.1474 of 2010
on the file of the Motor Accident Claims Tribunal, [Principal District
Judge], Cuddalore, within a period of eight weeks from the date of receipt
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CMA.No.1165 of 2014
of a copy of this judgment. On such deposit being made, the Tribunal is
directed to transfer the Award amount directly to the Bank account of the
respondents through RTGS, within a period of two weeks.
23.02.2022
vrc
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To
The Motor Accident Claims Tribunal,
[Principal District Judge], Cuddalore.
https://www.mhc.tn.gov.in/judis
CMA.No.1165 of 2014
J.NISHA BANU, J.
vrc
Civil Miscellaneous Appeal No.1165 of 2014
23.02.2022
https://www.mhc.tn.gov.in/judis
