Madras High Court
Sundeep Samson vs Lionel John Karunakaran on 7 July, 2022
C.M.A.No.4002 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
AND
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.4002 of 2019
1.Sundeep Samson
2.Aarthi Suchithra .. Appellants
Vs.
1.Lionel John Karunakaran
2.The New India Assurance Company Limited
No.232, NSC Bose Road
LIC Building, 6th floor
Chennai-600 001. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
24.04.2009 made in M.C.O.P.No.3670 of 2016 on the file of Motor
Accident Claims Tribunal, II Small Causes Court, Chennai.
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C.M.A.No.4002 of 2019
For Appellant : Mrs.A.Subadra
for Ms.M.Malar
For R2 : Mr.S.Dhakshnamoorthy
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI,J.)
The Civil Miscellaneous Appeal is filed challenging the dismissal
order passed by the Tribunal in the award dated 24.04.2009 made in
M.C.O.P.No.3670 of 2016 on the file of Motor Accident Claims Tribunal,
II Small Causes Court, Chennai.
2.The appellants are claimants in M.C.O.P.No.3670 of 2016 on the
file of Motor Accident Claims Tribunal, II Small Causes Court, Chennai.
They filed the said claim petition claiming a sum of Rs.25,00,000/- as
compensation for the death of their mother viz., Shashikala, who died in
the accident that took place on 11.03.2015.
3.According to the appellants, on the date of accident i.e., on
11.03.2015, at about 7.45 hours, while the deceased Shashikala was
travelling as a pillion rider in a Hero Honda Activa two wheeler bearing
Registration No.TN-07-BC-4833, from Maraimalai Nagar to Tambaram,
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C.M.A.No.4002 of 2019
on GST Road, Kilambakkam Lawrence Labour Body Works Opposite,
the driver of the unknown Government bus came in the same direction
and the rider of the two wheeler, who is husband of the deceased
Shashikala, in which the deceased Shashikala travelled as pillion rider,
rode the same in a rash and negligent manner, lost his balance, dashed
against the left side body of the Government bus and caused the accident.
In the accident, the said Shashikala died on the spot. Therefore, the
appellants filed the above claim petition claiming compensation against
the 1st respondent, owner of the two wheeler and 2nd
respondent/Insurance Company, insurer of the said two wheeler.
4.The 1st respondent, owner of the two wheeler remained exparte
before the Tribunal.
5.The 2nd respondent/Insurance Company filed counter statement
denying the averments made in the claim petition and stated that the
accident has not occurred due to negligence of the rider of the
motorcycle. As per the averments made in the F.I.R., the driver of the
Government bus alone was responsible for the accident. In spite of
efforts taken by the rider of the motorcycle to avoid the accident, the
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C.M.A.No.4002 of 2019
driver of the bus dashed behind the motorcycle and left the place without
stopping. In the F.I.R., the driver of the bus was shown as accused. The
driver of the bus was not impleaded as party in the claim petition and
hence, the claim petition is bad for non-joinder of necessary party.
Therefore, the 2nd respondent/Insurance Company is not liable to pay any
compensation to the appellants. In any event, the compensation claimed
by the appellants is excessive and prayed for dismissal of the claim
petition.
6.Before the Tribunal, the 2nd appellant, daughter of the deceased
examined herself as P.W.1, one Thomas, eye-witness to the accident was
examined as P.W.2 and 9 documents were marked as Exs.P1 to P9. The
2nd respondent/Insurance Company did not let in any oral and
documentary evidence.
7.The Tribunal considering the pleadings, oral and documentary
evidence, dismissed the claim petition holding that the appellants have
failed to prove that the accident occurred due to negligence on the part of
the rider of the motorcycle.
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C.M.A.No.4002 of 2019
8.Challenging the dismissal order passed by the Tribunal in the
said award dated 24.04.2009 made in M.C.O.P.No.3670 of 2016, the
appellants have come out with the present appeal.
9.The learned counsel appearing for the appellants contended that
the Tribunal without considering the claim of the appellants and evidence
let in by them, erroneously accepted the case of the 2nd
respondent/Insurance Company and dismissed the claim petition. The
contents of F.I.R. is not the basis to decide the negligence. The appellants
have examined eye-witness to the accident as P.W.2 and proved their
case. The 2nd respondent did not let in any evidence to substantiate their
case and there is no contra evidence to the evidence of P.W.2. In such
circumstances, the award of the Tribunal dismissing the claim petition is
to be set aside, the appellants are entitled to claim compensation for the
death of their mother and prayed for allowing the appeal and awarding
compensation.
10.The learned counsel appearing for the 2nd respondent/Insurance
Company contended that the Tribunal after considering the materials on
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C.M.A.No.4002 of 2019
record, accepted the case of the 2nd respondent, rightly dismissed the
claim petition and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellants as well
as the learned counsel appearing for the 2nd respondent and perused the
entire materials on record.
12.From the materials on record, it is seen that it is the case of the
appellants that on the date of accident i.e. on 11.03.2015, while their
mother, deceased Shashikala was travelling as a pillion rider in the Hero
Honda Activa two wheeler bearing Registration No.TN-07-BC-4833,
driven by their father Samson Kirubakaran, from Maraimalai Nagar to
Tambaram, on GST Road, Kilambakkam Lawrence Labour Body Works
Opposite, their father, rode the Hero Honda Activa two wheeler in a rash
and negligent manner, lost his control, hit against the left side of the
Government bus and caused the accident. In the accident, their mother
sustained injuries and died on the same day. The accident has occurred
only due to rash and negligent riding by the rider of the two wheeler,
father of the appellants. To substantiate the same, the 2 nd appellant
examined herself as P.W.1 and examined one Thomas, alleged eye-
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C.M.A.No.4002 of 2019
witness to the accident as P.W.2. On the other hand, it is the case of the
2nd respondent that the accident has occurred due to negligence of the
driver of the Government bus. The father of the appellants lodged
complaint against the driver of the bus. They have not impleaded the
Transport Corporation as party to the proceedings. F.I.R. was registered
against the driver of the bus based on the complaint given by the husband
of the deceased. In the complaint, a part of the Registration number of
the bus was given by the father of the appellants as 1738. Nothing has
been produced by the appellants before the Court to show that whether
any investigation was conducted by the Police and any report was filed.
Further, the rider of the two wheeler, who is father of the appellants, the
best witness to prove the manner of the accident and claim of the
appellants was not examined. The appellants also have not explained as
to why their father was not examined. It is no doubt true, F.I.R. is not the
basis for fixing negligence, but at the same time it has to be considered
along with other materials placed before the Tribunal. The Tribunal
analysing the contents of F.I.R. along with other materials, has come to
the independent conclusion with regard to negligence. In the present
case, the Tribunal has considered F.I.R. as well as failure on the part of
the appellants to examine the rider of the two wheeler, who is father of
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C.M.A.No.4002 of 2019
the appellants and dismissed the claim petition by giving cogent and
valid reasons. There is no error in the said award of the Tribunal
warranting interference by this Court.
13.In the result, the Civil Miscellaneous Appeal is dismissed. No
costs.
(V.M.V., J) (S.S., J)
07.07.2022
Index : Yes / No
Internet : Yes / No
kj
To
1.II Judge
Motor Accident Claims Tribunal
Small Causes Court, Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.4002 of 2019
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
kj
C.M.A.No.4002 of 2019
07.07.2022
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