Madras High Court
T.Prabakaran vs K.Settu on 3 March, 2022
CMA.Nos.3404 & 3511 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CMA.Nos.3404 and 3511 of 2017
and
CMP No.22524 of 2017
1.T.Prabakaran
2.Minor P.Vinitha
3.Minor P.Agila
(Minor petitioners 2 and 3 are represented
by their father/guardian 1st appellant)
...Petitioners / Appellants in CMA No.3404 of 2017
1.M.Neela
2.R.Sudhalakshmi
3.M.Baby
4.R.Manonmani
5.M.Subha
6.C.Chinna Kulandai
...Petitioners / Appellants in CMA No.3511 of 2017
v.
1.K.Settu
2.The Manager,
National Insurance Company Ltd.,
Motor Third Party HUB,
No.751, Anna Salai, IV Floor,
Chennai – 600 002.
..Respondents / Respondents in both CMAs
https://www.mhc.tn.gov.in/judis
CMA.Nos.3404 & 3511 of 2017
Prayer: Civil Miscellaneous Appeals filed under Section 173 of the Motor
Vehicles Act, 1988, to set aside the judgment and decree dated 05.10.2017
in MCOP Nos.272 of 2012 and 111 of 2012 on the file of the Motor
Accident Claims Tribunal, (District Court – II) Kanchipuram.
For Appellants : Mr.C.Prabakaran, in both CMAs
For R2 : Mr.J.Michael Visuvasam,
in both CMAs.
COMMON JUDGMENT
In view of the fact that common arguments advanced in both
appeals, a common judgment is passed. They both relate to one accident.
But two separate claim petition were preferred. CMA.No.3404 of 2017
arises out of MCOP No.272 of 2012 and CMA.No.3511 of 2017 arises out
of MCOP No.111 of 2012. Both the claim petitions had been preferred
before the Motor Accident Claims Tribunal / District Court – II,
Kancheepuram. Both the petitioners were dismissed by separate judgments
dated 05.10.2017. The claimants have filed these two appeals.
2.The brief fact necessitating the filing of the claim petitions was
that, a Hero Honda Splendor Plus motor cycle bearing registration No.TN-
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CMA.Nos.3404 & 3511 of 2017
21-AJ-2875, was driven by the 1st respondent, K.Settu who was proceeding
from Walajabad to his native place. When he reached Uthukaedu Village
Junction Road on the Kancheepuram to Tambaram High Road, it was
alleged that he lost control and as a consequence of which hit a pedestrian
and further the pillion rider also fell down and both of them sustained fatal
injuries all over the body and died on the way to the hospital. The pedestrian
was said to be one Muniammal and her legal representatives, had filed
MCOP No.272 of 2017. The pillion rider was one Manokaran and his legal
representatives filed MCOP No.111 of 2017.
3.Both the claim petitions were filed taken advantage of Section
166 of the Motor Vehicles Act, 1988, which naturally meant that a burden
was cast to prove the negligence on the offending vehicle and to establish
that the injury suffered in the manner in which they claimed the accident
occurred.
4.To prove the accident, two eye witnesses were examined as PW-
2 and PW-3. On hind sight, the appellants now probably must be of the
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CMA.Nos.3404 & 3511 of 2017
opinion they should have not examined the aforesaid witness. But they have
examined them as witness and their evidence were also recorded. It is to be
kept in mind that under Section 169 of the Motor Vehicles Act, 1988, while
recording evidence, the Tribunal is vested with the power of a Civil Court
and such evidence is also to be recorded on oath as solemn statements made
before the Court. It need not stated that the evidence includes both
examination in chief and cross examination.
5.While determining the aforementioned two petitions, two
separate orders was passed, but the reasons are primarily the same.
6.The Tribunal examined the evidence of PW-2, Sathishkumar and
in this connection, it must also be pointed out that he was also the informant
relating to registration of FIR in Crime No.128 of 2012 under Sections 279,
337 and 304A IPC by the Walajabad Police Station. RW-1, Sub-Inspector of
Police had been examined to speak about the FIR and he affirmed that
information was given by PW-2, Sathishkumar.
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CMA.Nos.3404 & 3511 of 2017
7.During trial, the actual facts came out and it transpired that in
the motor vehicle driven by K.Settu, the 1st respondent, both Muniyammal
and Manokaran were pillion riders. The motor cycle was hit by an unknown
car, which could not be traced and owing to such accident, both the pillion
riders, Muniyammal and Manokaran fell down and died owing to injuries
suffered. The negligence was on that aforementioned unknown car. This was
the gist of information given to the police and which was reduced in the FIR
in Crime No.128 of 2012.
8.However, the petitions were filed before the Tribunal with a
different version that Muniyammal was a pedestrian and Manokaran was the
only pillion rider and that the driver of the motor cycle lost control owing to
the motor cycle being driven in rash and negligent manner, and dashed
against the pedestrian Muniyammal and consequent to which she died and
consequent to the accident, the pillion rider Manokaran also fell down,
suffered injuries and died.
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CMA.Nos.3404 & 3511 of 2017
9.The statements made in the claim petition are evidently false.
The deceased were both pillion riders and the accident was occurred owing
to the fact that the motor cycle hit by an untraced car. This fact came out
during the cross-examination PW-2, Sathishkumar. He stated that one
Dineshkumar knew about the actual facts. That Dineshkumar was examined
as PW-3 and the Tribunal has extracted the relevant portion of the cross-
examination of PW-3, where he stated that both the deceased were travelling
as pillion riders and that the accident occurred since an unknown car dashed
against the motor cycle.
10.Naturally, if the negligence was on the part of the unknown car,
the insurer of the motor cycle cannot be called upon to pay compensation
since there was no negligence attributed by the driver of the motor cycle. The
policy of the insurance has to be interpreted in a stricto senso manner and
the insurance is covered for accidents occurring owing to negligence of the
insured. If the accident occurs owing to negligence of another third party
vehicle, then the insurer of the motor cycle in this case, cannot be called
upon to pay compensation for the injuries suffered or to compensate the
family members of the deceased.
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CMA.Nos.3404 & 3511 of 2017
11.It would have been prudent had the claimants come forward
before the Tribunal with actual facts and had filed petition under Section
163 A of the Motor Vehicles Act, 1988. But they took a conscious decision to
prove the accident in the manner in which they stated it happened which
was directly contra to the facts as stated to the police, when they registered
the FIR. It they stand by falsehood, they have to fall by their own folly.
12.With the above observations, I do not find any reason to
interfere with the orders dated 05.10.2017 in MCOP No.272 & 111 of 2012
passed by the Motor Accident Claims Tribunal / District Judge, District
Court – II, Kanchipuram and therefore, the Civil Miscellaneous Appeals are
dismissed. No order as to costs. Consequently, connected Civil
Miscellaneous Petition is closed.
03.03.2022
smv
Index:Yes/No
Internet:Yes/No
Speaking / Non-speaking order
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CMA.Nos.3404 & 3511 of 2017
To:-
1.The Motor Accident Claims Tribunal / District Court – II, Kancheepuram.
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CMA.Nos.3404 & 3511 of 2017
C.V.KARTHIKEYAN, J.
smv
CMA.Nos.3404 & 3511 of 2017
03.03.2022
https://www.mhc.tn.gov.in/judis
