Madras High Court
M/S.Andhra Cement Carrier vs The Royal Sundaram Alliance ... on 28 June, 2022
C.M.A.No.4526 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.4526 of 2019
and C.M.P.No.25677 of 2019
M/s.Andhra Cement Carrier
Represented by its Proprietor
Having Office at No.110/E, G.K.Complex
Thiruvallur – 602 001.
Now Office at Sholinghur Road
Kumpinipet
Behind Indian Oil Pump, Arakonam – 631 003. ... Appellant
Vs.
1.The Royal Sundaram Alliance Insurance
Company Limited
Having Office at Subramanian building
2nd floor, No.1, Club House Road
Anna salai, Chennai-600 002.
2.S.Mangala Devi
3.Minor N.S.M.Navarasan
(Minor represented by mother and
natural guardian S.Mangala Devi)
1/10
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C.M.A.No.4526 of 2019
4.Minor N.S.M.Kavya
(Minor represented by mother and
natural guardian S.Mangala Devi)
N.Manonmani (died)
(Amended as per order in I.A.No.837/2007
dated 06.11.2017)
J.Natarajan (died)
(Amended as per order in I.A.No.247/2017
dated 21.07.2017) ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 30.11.2017 made
in M.C.O.P.No.181 of 2013 on the file of Motor Accident Claims Tribunal, IV
Additional District Court, Thiruvallur at Ponneri.
For Appellant : Mr.S.Shanmugasundaram
for Mr.S.Senthilnathan
For R1 : Mr.G.Vasudevan
For R2 to R4 : Mr.K.Hariharan
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI,J.)
This Civil Miscellaneous Appeal has been filed by the appellant, owner
of the vehicle, challenging the portion of the award ordering pay and recovery,
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C.M.A.No.4526 of 2019
passed by the Tribunal dated 30.11.2017 made in M.C.O.P.No.181 of 2013
on the file of Motor Accident Claims Tribunal, IV Additional District Court,
Thiruvallur at Ponneri.
2.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the 1st respondent/Insurance Company and
learned counsel appearing for the respondents 2 to 4 and perused the entire
materials on record.
3.The appellant, owner of the vehicle is the 1st respondent in
M.C.O.P.No.181 of 2013 on the file of Motor Accident Claims Tribunal, IV
Additional District Court, Thiruvallur at Ponneri. The respondents 2 to 4
along with one N.Manonmani and J.Natarajan filed the said claim petition
claiming a sum of Rs.80 lakhs as compensation for the death of one
Saravanan, who died in the accident that took place on 05.07.2012. Pending
claim petition, the said Manonmani and Natarajan, who are parents of the
deceased Saravanan died.
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C.M.A.No.4526 of 2019
4.According to the respondents 2 to 4, on the date of accident i.e., on
05.07.2012 at 4.40 P.M., while the deceased Saravanan was riding a
motorcycle bearing Registration No.TN-20-BA-4509 from Uthukottai to
Thiruvallur, Opposite to Meera Theatre, the driver of the lorry bearing
Registration No.TN-20-BD-6262 belonging to the appellant, who was coming
in the same direction, drove the same in a rash and negligent manner, hit
against the motorcycle and caused the accident. In the accident, the said
Saravanan died on the way to hospital. Therefore, the respondents 2 to 4
along with parents of the deceased have filed the above claim petition
claiming compensation against the appellant, owner of the lorry and 1st
respondent/Insurance Company, insurer of the said lorry.
5.The appellant, owner of the lorry remained exparte before the
Tribunal.
6.The 1st respondent/Insurance Company insurer of the lorry filed
counter statement denying the averments made by the respondents 2 to 4 and
stated that since the accident has occurred due to collision of two vehicles,
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C.M.A.No.4526 of 2019
contributory negligence has to be fixed on the part of the deceased Saravanan.
The driver of the lorry belonging to the appellant does not possess valid
driving license to drive the vehicle at the time of accident. Therefore, the 1 st
respondent/Insurance Company is not liable to pay any compensation to the
respondents 2 to 4. The 1st respondent/Insurance Company has also denied
the age, avocation and income of the deceased. In any event, the
compensation claimed by the respondents 2 to 4 is excessive and prayed for
dismissal of the claim petition.
7.Before the Tribunal, the 2nd respondent, wife of the deceased
Saravanan examined herself as P.W.1, one Ashogan, eye-witness to the
accident was examined as P.W.2 and 9 documents were marked as Exs.P1 to
P9. The 1st respondent/Insurance Company examined the Assistant Manager
(legal) of the Insurance Company as R.W.1 and marked the copies of driving
license of the driver of the lorry and Insurance policy of the lorry as Exs.R1
and R2.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
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C.M.A.No.4526 of 2019
the driver of lorry belonging to the appellant and directed the 1 st
respondent/Insurance Company being the insurer of the said lorry to pay a
sum of Rs.22,26,569/- as compensation to the respondents 2 to 4, at the first
instance and recover the same from the appellant/owner of the lorry, as the
driver of the lorry did not possess driving license at the time of accident.
9.Challenging the portion of award ordering pay and recovery, the
appellant/owner of the lorry has come out with the present appeal.
10.It is the case of the learned counsel appearing for the appellant that
driver of the lorry had valid driving license till 03.05.2022 and the same is
recorded in the Motor Vehicle Inspector's Report. Motor Vehicle Inspector's
Report produced by the respondents 2 to 4 was marked as Ex.P8. In column
No.7 of Ex.P8, it is recorded as follows:
“HGV – 22.7.2012, D.L.No. 1811/KOR/2002, Expiry Date
: 03.05.2022, Badge: Office: ALA/Ambikapur”
On the other hand, the learned counsel appearing for the 1 st
respondent/Insurance Company contended that driver of the lorry did not
possess driving license at the time of accident and hence, the 1 st respondent is
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C.M.A.No.4526 of 2019
not liable to pay compensation to the respondents 2 to 4. In support of their
contention, they relied on Ex.R1/driving license of the driver of the lorry
issued by the Transport Department, Government of Chhattisgarh. The
Tribunal considering the contention of the learned counsel appearing for the
1st respondent/Insurance Company and Ex.R1, held that the driver of the
lorry did not possess driving license at the time of accident and ordered pay
and recovery directing the 1st respondent to pay compensation to the
respondents 2 to 4 at the first instance and recover the same from the
appellant.
10(i). From Ex.P8/Motor Vehicle Inspector's Report, it is seen that
Driving License No.1811/KOR/2002 of the driver of the lorry, expiry date,
badge endorsement and Office of issuing authority have been mentioned. The
Tribunal has not considered Ex.P8, wherein it was specifically mentioned that
the driver of the lorry possessed valid driving license till 03.05.2022 and on
the date of accident, the driver of the lorry possessed valid driving license to
drive the heavy goods vehicle. In view of the above materials, the portion of
the award of the Tribunal ordering pay and recovery directing the 1st
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C.M.A.No.4526 of 2019
respondent/Insurance Company to pay compensation to the respondents 2 to
4 at the first instance and recover the same from the appellant alone is liable
to be set aside and is hereby set aside. The appellant as well as the 1 st
respondent are jointly and severally liable to pay the compensation awarded
by the Tribunal to the respondents 2 to 4.
11. In the result, the Civil Miscellaneous Appeal is allowed by setting
aside the portion of the award directing the appellant to pay compensation to
the respondents 2 to 4 at the first instance and recover the same from the 1 st
respondent/Insurance Company. The compensation of Rs.22,26,569/-
awarded by the Tribunal along with interest and cost is confirmed. The
learned counsel appearing for the 1st respondent/Insurance Company
submitted that the 1st respondent deposited the entire amount awarded by the
Tribunal along with interest and costs. Considering the above submissions of
the learned counsel appearing for the 1st respondent, the 2nd respondent is
permitted to withdraw her respective share of the award amount, determined
by the Tribunal, as per the apportionment fixed by the Tribunal along with
proportionate interest and costs, less the amount if any, already withdrawn.
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C.M.A.No.4526 of 2019
The shares of the minor respondents 3 and 4 are directed to be deposited in
any one of the Nationalized Banks, till the minors attain majority. The 2nd
respondent, mother of the minor respondents 3 and 4, is permitted to
withdraw the accrued interest, once in three months for the welfare of the
minor respondents 3 and 4. Consequently, connected Miscellaneous Petition is
closed. No costs.
(V.M.V., J) (S.S., J)
28.06.2022
Index : Yes / No
kj
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C.M.A.No.4526 of 2019
V.M.VELUMANI,J.
and
S.SOUNTHAR,J.
kj
To
1.The IV Additional District Judge
Motor Accident Claims Tribunal
Thiruvallur at Ponneri.
2.The Section Officer
VR Section
High Court
Madras.
C.M.A.No.4526 of 2019
and C.M.P.No.25677 of 2019
28.06.2022
https://www.mhc.tn.gov.in/judis
