Madras High Court
The Branch Manager vs M.Vellaithai on 27 January, 2022
C.M.A.(MD)No.296 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD)No.296 of 2014
and
M.P.(MD)No.1 of 2014
The Branch Manager,
National Insurance Company Limited,
1st Floor, 6, West Masi Street,
Madurai,
Tamilandu. ...Appellant/2nd Respondent
Vs.
1.M.Vellaithai
2.Rajalakshmi
3.Muthuraman
4.Mutukumar ...Respondent Nos.1 to 4/
Petitioner Nos.1 to 4
5.Seenivasan ...5th Respondent/1st Respondent
PRAYER: Civil Miscellaneous Petition is filed under Section 173 of Motor
Vehicle Act, 1988, to set aside the judgment and decree passed by the Motor
Accident Claims Tribunal, Additional District & Sessions Court, Dindigul in
M.C.O.P.No.5 of 2011, dated 03.07.2012.
1/7
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.296 of 2014
For Appellant : Mr.A.Balaji
for Mr.D.Sivaraman
For R1 - R4 : Mr.N.Madhava Govindan
For R5 : No Appearance
JUDGMENT
The appellant/National Insurance Company Ltd., the second
respondent in M.C.O.P.No.5 of 2011 on the file of the Motor Accident
Claims Tribunal, Additional District & Sessions Court, Dindigul has filed the
present appeal.
2. The case of the claimant in nutshell is as follows:
On 14.11.2010, while the deceased one Malaisamy and his
Muthuraman were walking on Sithaiyankottai – Ayyampalayam Road from
east to west at left side of the road, when they were came near Siragitheen
Thoppu, at that time a Mini Tractor bearing Registration No.TN-57-AB-4808
belonging to the first respondent driven by its driver in a rash and negligent
manner dashed against the deceased Malaisamy. Immediately, he was
admitted in the Government Hospital, Dindigul, but he succumbed due to
injuries. A case in Crime No.414 of 2010 under Section 279, 304(A) IPC
was registered against the driver of the Mini Tractor.
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C.M.A.(MD)No.296 of 2014
3.The claimants have filed a petition in M.C.O.P.No.5 of 2011 on the
file of the Motor Accidents Claims Tribunal/Additional District and Sessions
Court, Dindigul, seeking compensation of Rs.5,00,000/-.
4.Before the Tribunal, on the side of the claimants, two witnesses were
examined as P.W.1 and P.W.2 and marked four documents as Ex.P1 to Ex.P4.
On the side of the respondents, two witnesses were examined as R.W.1 and
R.W.2 and marked seven documents as Ex.R1 to Ex.R7.
5.The Tribunal, after considering the pleadings, oral and documentary
evidences and the arguments of the counsels for the claimants and
respondents and also on appreciating the evidences on record, held that the
accident was occurred only due to the rash and negligent driving of the driver
of the first respondent and directed the first and second respondents to pay a
sum of Rs.4,80,500/-, as compensation. Against which, the
appellant/Insurance Company has preferred this appeal.
6.The learned counsel appearing for the appellant/Insurance Company
contended that the driver of the Mini Tractor bearing Registration No.TN-57-
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C.M.A.(MD)No.296 of 2014
AB-4808 was not having a valid driving licence on the date of the accident.
Eventhough the appellant/Insurance Company issued notice to the owner of
the vehicle, no license was produced. But the Tribunal fastened the liability
both on the Insurance Company and fifth respondent. He also relied on the
judgment of this Court in National Insurance Company Ltd., v. Samiyathal
and others reported in 2004 (1) TNMAC 455, in which, this Court held that
even after issuing notice to the owner to produce the driving licence, the
owner has not produced any licence and hence, the owner is liable to pay
compensation. Therefore, he prayed this Court that 'pay and recovery' may be
ordered by this Court.
7.Heard Mr.A.Balaji, learned counsel for the appellant and
Mr.N.Madhava Govindan, learned counsel for R1 to R4. No representation
on behalf of the fifth respondent.
8.A perusal of records would show that before the Tribunal, the
appellant/ Insurance Company has issued notice to the owner of the vehicle,
which were marked as Ex.R3 to Ex.R5 to produce the license. But the owner
of the vehicle has not produced any license for the driver of the Mini Tractor.
The owner of the vehicle was also set ex-parte and not appear before the
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C.M.A.(MD)No.296 of 2014
Court to prove the driver has valid license. So the appellant/Insurance
Company clearly proved that there was no license for the driver of the Mini
Tractor on the date of accident. Hence, the Tribunal ought to have ordered
pay and recovery.
9.In the facts and circumstances of the present case, the order passed
by the Tribunal in M.C.O.P.No.5 of 2011, dated 03.07.2012 on the file of the
Motor Accidents Claims Tribunal/Additional District and Sessions Court,
Dindigul, is hereby modified.
10.In the above facts and circumstances of the case, this Court directs
the appellant/National Insurance Company Limited, to deposit the
compensation amount awarded by the Tribunal i.e., Rs.4,80,500/- together
with interest at the rate of 7.5% per annum from the date of claim petition till
the date of deposit to the credit of MCOP.No.5 of 2011 on the file of the
Motor Accidents Claims Tribunal/Additional District and Sessions Court,
Dindigul in the first instance and then, recover the same from the owner of
the mini Tractor bearing Registration No.TN-57-AB-4808 on the same cause
of action. On such deposit being made, the claimants are entitled to withdraw
the same after following due process of law. The ratio of apportionment made
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C.M.A.(MD)No.296 of 2014
by the Tribunal shall be kept intact.
11.In the result, the Civil Miscellaneous Appeal is partly allowed.
No costs. Consequently, connected miscellaneous petition is closed.
27.01.2022
Index :Yes/No
Internet:Yes/No
vsd
Note:In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is presented
is the correct copy, shall be the responsibility of the
Advocate/litigant concerned.
To
1.The Motor Accident Claims Tribunal/
Additional District & Sessions Court,
Dindigul
2. The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.296 of 2014
S.ANANTHI, J.
vsd
Judgment made in
C.M.A.(MD)No.296 of 2014
and
M.P.(MD)No.1 of 2014
27.01.2022
https://www.mhc.tn.gov.in/judis
