Madras High Court
National Insurance Company ... vs C.Kantha on 29 March, 2022
C.M.A(MD).No.634 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.M.A(MD)No.634 of 2014
and
C.M.P(MD).No.3 of 2014
National Insurance Company Limited,
Represented by its Branch Manager,
Erode. :Appellant/Second respondent
.vs.
1.C.Kantha
2.C.Thilakar
3.C.Baskar
4.M/s.Mangal Exports,
82/41A, Sampath Nagar Extention,
Sanjai Nagar,
Erode-638 001.
5.The Branch Manager,
Royal Sundaram Allianz Insurance Company Limited,
46, Whites Road,
Chennai-14.
6.K.S.Senthilnathan : Respondents
1/9
https://www.mhc.tn.gov.in/judis
C.M.A(MD).No.634 of 2014
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to modify the judgment and decree dated 27.04.2011
passed in M.C.O.P.No.191 of 2008 on the file of the Motor Accident
Claims Tribunal/Additional District Judge/Fast Track Court No.II,
Tuticorin.
For Appellant : Mr.R.Srinivasan
For Respondents : Mr.S.Senthil Sankaranatha Kumar
for R1 to R3
No appearance for R4 and R5
JUDGMENT
*************
This Civil Miscellaneous Appeal is filed by National Insurance
Company Limited, challenging the judgment and decree passed in
M.C.O.P.No.191 of 2008, on the file of the Motor Accidents Claims
Tribunal/Additional District Judge/Fast Track Court No.II, Tuticorin.
2. For the sake of convenience, the parties are called as per their
ranking in the Tribunal.
3. The brief case of the respondents 1 to 5/claimants, is as follows:
(i) The deceased was aged about 24 years on the date of the
accident and he was a driver and was earning a sum of Rs.6,000/- per
month.
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C.M.A(MD).No.634 of 2014
(ii) The first petitioner is the mother of the deceased and the
petitioners 2 and 3 are the brothers of the deceased.
(iii) On 18.05.2008, at about 22.00 hours, when the deceased was
walking near Perunthurai (Erode District) new bus stand towards west to
east. At that time, a Maruthi van bearing registration No.TN-33-AK-2101
came in the opposite direction driven by its driver in a rash and negligent
manner and dashed against the deceased, as a result of which, the
deceased was thrown away and fell down on the road. At that time, bus
bearing registration No.TN-63-X-3999 came towards east to west and ran
over the deceased and the deceased sustained multiple grievous injuries
and died on the spot. Since the accident occurred due to the rash and
negligent driving of the drivers of both the vehicles of the respondents 1
and 3. The first respondent's vehicle was insured with the second
respondent/Insurance company and the third respondent's vehicle was
insured with the fourth respondent/Insurance Company. Hence, the
second and the fourth respondents are jointly are severally liable to pay
the compensation to the claimants.
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C.M.A(MD).No.634 of 2014
4. Before the Tribunal, on the side of the claimants, PW1 to P.W.3
were examined and exhibits P1 to P9 were marked. On the side of the
respondents R.W.1 and R.W.2 were examined and Ex.R1 to R4 were
marked.
5. The respondents 4 and 6 herein was absent before the Tribunal,
and therefore, they were set ex-parte. The other respondents contested
the claim petition. After going through the oral and documentary
evidence placed on record, the Tribunal came to the conclusion that the
said occurrence had happened on composite negligence of the drivers of
both the vehicles, namely, the first and the third respondent in the ratio of
50 : 50. Aggrieved over the finding of the composite negligence alone,
the Insurance company has preferred this appeal.
6. The Insurance Company of the Omni bus has not filed any
appeal. The Insurance Company of the Bus alone has preferred this
appeal on the ground that whether the composite negligence at 50%
fixed by the Tribunal is just and proper, is the point for consideration.
Two witnesses are main witnesses in this case, namely, P.W.2, who is the
eyewitness and R.W.1 who is the driver of the third respondent's bus,
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C.M.A(MD).No.634 of 2014
which was insured with the appellant/Insurance Company.
7. On perusal of evidence of P.W.2, it revealed that on 18.05.2008
at about 10.00 p.m., near Perunthurai new bus stand, he was drinking tea
in the tea stall and at that time, the deceased was walking towards west to
east and at that time, the first respondent's driver drove his vehicle in a
rash and negligent manner and dashed against the deceased, as a result of
which, the deceased was thrown away and fell down on the road. Hence,
the Tribunal has fixed the composite negligence on the part of the driver
of the first respondent at 50%.
8. As per the evidence of P.W.2, the third respondent's driver drove
his vehicle in a rash and negligent manner from east to west and hit
against the deceased and he sustained multiple grievous injuries and died
on the spot. No doubt, FIR has been registered against first respondent
(before the Tribunal).
9. R.W.1, who is the driver of the third respondent (before the
Tribunal) admitted in his cross-examination that he saw the throwing of
the deceased at a distance of 20 feet and when suddenly applying the
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C.M.A(MD).No.634 of 2014
brake, the vehicle will stop after 10 feet and deceased would have not
been knocked down in his bus and hence, it is not possible for R.W.1, to
stop his vehicle at a distance of 20 feet.
10. Considering the above facts, the Tribunal has held that the
accident had also occurred due to the rash and negligent driving of R.W.
1, who is the third respondent's driver and fixed the composite the
negligence on the part of the drivers of both the first and the third
respondents in the ratio of 50:50. Hence, it does not suffer from any
illegality or irregularity.
11. Quantum of compensation: After going through the award
passed by the Tribunal and also the heads under which the compensation
is awarded, it appears that the same is just and reasonable and it does not
suffer from any illegality or irregularity. Accordingly, the quantum of the
compensation awarded by the Tribunal is hereby confirmed.
12. In the result,
(i) The Civil Miscellaneous Appeal is dismissed. No costs.
Consequently, the connected Miscellaneous Petition is closed.
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C.M.A(MD).No.634 of 2014
(ii) The award passed by the Tribunal is upheld.
(iii) The appellant – Insurance Company is directed to deposit the
entire amount awarded by the Tribunal i.e., Rs.6,36,500/-(Six Lakhs
Thirty Six thousand and Five Hundred Only) together with interest at the
rate of 7.5% per annum (if not already deposited) to the credit of
M.C.O.P.No.191 of 2008, on the file of the Motor Accidents Claims
Tribunal, Additional District Judge/Fast Track Court No.II, Tuticorin
within a period of eight weeks from the date of receipt of a copy of this
order.
(iv) The respondents 1 t0 3/claimants are permitted to withdraw
the same, in the manner known to law.
29.03.2022
Index:Yes/No
Internet:Yes/No
tta
https://www.mhc.tn.gov.in/judis
C.M.A(MD).No.634 of 2014
To
1.Motor Accidents Claims Tribunal,
Additional District Judge/Fast Track Court No.II,
Tuticorin.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD).No.634 of 2014
RMT.TEEKAA RAMAN.,J.
tta
JUDGMENT MADE IN
C.M.A(MD)No.634 of 2014
29.03.2022
https://www.mhc.tn.gov.in/judis
