Madras High Court
United India Insurance Company ... vs Selvarani on 7 September, 2022
C.M.A.(MD)No.406 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
C.M.A.(MD)No.406 of 2018
and
C.M.P(MD)No.5139 of 2018
United India Insurance Company Ltd.,
Rep. by its Branch Manager,
506 X, 2nd Ground Floor,
Kandan Complex,
Opposite to Bus stand,
Valiyoor. .. Appellant/2nd
Respondent
Vs.
1.Selvarani
2.Minor Monish Kumar
3.Minor Dinesh Kumar
(2nd and 3rd respondents
represented through their
mother and natural
st
guardian/1 respondent)
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C.M.A.(MD)No.406 of 2018
4.Thangaraj
5.Mamasi .. 1st to 5th Respondents/Claimants
6.R.Shinu .. 6th Respondent/ 1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the award and decree, dated
13.02.2018 made in M.C.O.P.No.65 of 2015, on the file of the Motor
Accidents Claims Tribunal/III-Additional District Judge, Tirunelveli
District.
For Appellant : Mr.N.Dilip Kumar
For Respondents 1 to 5 : Mr.I.Pinaygash
For Respondent No.6 : Mr. M.P.Senthil Kumar
JUDGMENT
J.NISHA BANU, J.
and
N.ANAND VENKATESH, J.
This appeal has been filed by the United India Insurance Company
Limited against the award passed by the Motor Accidents Claims
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C.M.A.(MD)No.406 of 2018
Tribunal (hereinafter referred to as 'MACT'), Tirunelveli in M.C.O.P.No.
65/2015, dated 13.02.2018.
2.The claimants, viz., respondents 1 to 5 filed a petition seeking
for compensation on account of the death of one Sermadurai in a motor
vehicle accident which took place on 26.07.2014.
3.The case of the claimants is that on 26.07.2014, at about 8.45
p.m., the deceased Sermadurai was riding a motorcycle in Thisayanvillai-
Kottaikarungaulam main road. Another motorcycle belonging to the 6th
respondent herein, which was insured with the appellant Company was
going in front of the vehicle driven by the deceased. It is alleged that the
6th respondent suddenly turned on the right side without any indication
and stopped the vehicle abruptly and as a result, the motorcycle driven
by the deceased dashed on the vehicle belonging to the 6th respondent.
The deceased, who was thrown out of the motorcycle, sustained serious
head injuries. Ultimately, the deceased succumbed to his injuries on
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C.M.A.(MD)No.406 of 2018
28.07.2014.
4. The claimants claimed for a compensation of a sum of Rs.
20,00,000/- under various heads and filed the claim petition before the
Tribunal.
5.The MACT, on considering the facts and circumstances of the
case and on appreciation of evidence, found that the accident took place
only due to the negligence of the 6th respondent. Insofar as the
compensation is concerned, the Tribunal awarded a sum of Rs.
23,38,000/- as compensation along with interest at the rate of 7.5% from
the date of filing the petition till the date of payment.
6. Heard Mr.N.Dilip Kumar, learned counsel appearing for the
appellant/Insurance Company, Mr.I.Pinaygash, learned counsel
appearing for the respondents 1 to 5/claimants and Mr.M.P.Senthil
Kumar, learned counsel appearing for the 6th respondent.
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C.M.A.(MD)No.406 of 2018
7.The learned counsel for the appellant Insurance Company
submitted that the Tribunal completely disregard the evidence of the 6th
respondent and went on the footing that no evidence was adduced on the
side of the offending vehicle. The learned counsel further submitted that
the eyewitness who was examined before the Tribunal on the side of the
claimants was not trustworthy and reliable and he was not even aware
about the police case or the FIR registered after the incident. The learned
counsel further submitted that it was the 6th respondent, who had lodged
the complaint against the deceased for rash and negligent driving and
ultimately, the criminal case was closed since the deceased died and the
proceedings abated. Hence, it was contended that the Tribunal went
wrong in finding that the accident took place due to the negligence of the
6th respondent.
8. Insofar as the quantum of compensation is concerned, the
learned counsel for the appellant submitted that it is on the higher side
and it requires the interference of this Court.
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C.M.A.(MD)No.406 of 2018
9. On carefully going through the judgment of the Tribunal, it is
seen that the Tribunal proceeded on a wrong footing as if no evidence
was adduced on the side of the 6th respondent, whose vehicle was insured
with the appellant Insurance Company. This Court went through the
original bundle and it is found that the 6th respondent was, in fact,
examined as a witness on 25.04.2016 and he was also cross-examined on
the same day. It is not known as to how the Tribunal completely
disregarded this evidence and gave a finding as if no witness was
examined on the side of the 6th respondent.
10. Considering the fact that the accident had taken place in the
year 2014 and the award was passed in the year 2018, we thought it fit to
assess the evidence of the 6th respondent in order to find out as to
whether there is negligence on the part of the deceased.
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C.M.A.(MD)No.406 of 2018
11. On carefully going through the evidence of the 6th respondent,
it is seen that he has given his version about the accident and even in the
deposition, he had stated that the deceased was driving his two wheeler
behind his two wheeler and he dashed on the vehicle belonging to the 6 th
respondent and both of them fell down. Both of them were admitted in
the hospital. At that point of time, the 6th respondent seems to have given
a complaint to the police and based on the same, an FIR was registered
in Crime No.247/14 for the offences under Sections 279 and 337 IPC
against the deceased Sermadurai. This criminal case came to be closed
on the demise of Sermadurai.
12. As against the evidence given by the 6th respondent, the
evidence of P.W-2 is available and he was an eyewitness to the incident.
This witness has clearly stated that the 6th respondent without giving any
indication, all of a sudden, turned his vehicle to the right side and as a
result of the same, the deceased was not able to stop his two wheeler and
he dashed on the vehicle belonging to the 6th respondent. This evidence
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C.M.A.(MD)No.406 of 2018
of P.W-2 has not been discredited in the cross examination.
13. As between the evidence of the eyewitness and the evidence of
the 6th respondent, this Court would naturally lean in favour of the
evidence of the eyewitness, who was a third party. The evidence of the
6th respondent is more in the nature of a self-serving statement wherein
the 6th respondent has given his version about the accident.
14. The Tribunal, on considering the evidence of P.W-2, has come
to a categoric conclusion that his evidence is reliable and the 6th
respondent had given the police complaint against the deceased only to
escape from the consequences of the accident. This finding given by the
Tribunal cannot be held to be perverse and hence, the same is not liable
to be interfered by this Court. Accordingly, on the question of
negligence, this Court concurs with the finding of the Tribunal.
15. Insofar as the amount of compensation fixed by the Tribunal,
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C.M.A.(MD)No.406 of 2018
this Court finds that sufficient reasons have been assigned while fixing
the compensation under various heads and the same is just and
reasonable.
16. The learned counsel appearing on behalf of the claimants made
an attempt to seek for enhancement of compensation by virtue of Order
41 Rule 33 CPC. We find that the compensation fixed by the Tribunal,
does not require the interference of this Court. In fact, the claimants had
claimed a compensation of Rs.20,00,000/- and the Tribunal had fixed the
compensation at Rs.23,38,000/- and that by itself shows that the Tribunal
has fixed a just compensation.
17. In view of the above discussion, this Court does not find any
ground to interfere with the award passed by the Tribunal and
accordingly, this civil miscellaneous appeal stands dismissed. No Costs.
Consequently, connected miscellaneous petition is closed.
18. This Court, at the time of entertaining the appeal, directed the
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C.M.A.(MD)No.406 of 2018
appellant Insurance Company to deposit the entire award amount along
with accrued interest and accordingly, the appellant Company has also
deposited the same. In view of the dismissal of this appeal, it is left open
to the claimants to withdraw the compensation in the proportion as fixed
by the Tribunal.
[J.N.B., J.] [N.A.V., J.]
07.09.2022
Index : Yes/No
Internet : Yes
PJL
To
The III-Additional District Judge/
Motor Accidents Claims Tribunal,
Tirunelveli District.
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C.M.A.(MD)No.406 of 2018
J.NISHA BANU,J.
and
N.ANAND VENKATESH, J.
PJL
C.M.A.(MD)No.406 of 2018
07.09.2022
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https://www.mhc.tn.gov.in/judis
