Madras High Court
The Manager vs Loganayagi on 12 September, 2022
C.M.A.No.24 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.24 of 2021
and
C.M.P.No.222 of 2021
The Manager,
M/s. IFFCO – TOKIO General Insurance
Company Limited,
No.28/195, North Usman Road,
T – Nagar,
Chennai – 600 017. .. Appellant
Vs.
1.Loganayagi
2.Minor. Boopesh
3.Minor. Harini
(Minor respondents 2 & 3 are represented
by their Mother / Guardian, Loganayagi,
1st respondent herein)
4.Pathipooranam
5.E.Senthamarai .. Respondents
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C.M.A.No.24 of 2021
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
29.11.2019, made in M.C.O.P.No.298 of 2013, on the file of the Motor
Accident Claims Tribunal, Additional District Court - Fast Track Court,
Kanchipuram.
For Appellant : Mr.J.Michael Visuvasam
For RR 1 to 4 : Mr.K.Suryanarayanan
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.)
This Civil Miscellaneous Appeal has been filed by the appellant /
Insurance Company against the judgment and decree dated 29.11.2019,
made in M.C.O.P.No.298 of 2013, on the file of the Motor Accident
Claims Tribunal, Additional District Court - Fast Track Court,
Kanchipuram.
2.The appellant is the 2nd respondent in M.C.O.P.No.298 of 2013,
on the file of the Motor Accident Claims Tribunal, Additional District
Court - Fast Track Court, Kanchipuram. The respondents 1 to 4 /
claimants filed the said claim petition, claiming a sum of Rs.10,00,000/-
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C.M.A.No.24 of 2021
as compensation for the death of one Kamalakannan, who died in the
accident that took place on 04.04.2013.
3.According to the respondents 1 to 4, on 04.04.2013 at about
08.30 p.m., while the deceased Kamalakannan was proceeding in the
motorcycle bearing Registration No.TN 21 AB 1396 from Kilambi to
Kanchipuram, near Fashion Company at Magamedu, Kilambi Village, the
rider of the motorcycle bearing Registration No.TN 21 M 4852
belonging to 5th respondent, who was riding the motorcycle behind the
motorcycle driven by the said Kamalakannan, drove the same in a rash
and negligent manner and dashed on the backside of the motorcycle
driven by the said Kamalakannan and caused the accident. In the
accident, the said Kamalakannan sustained grievous injuries and died in
the Kanchipuram Government Hospital on the same day. Hence, the
respondents 1 to 4 filed the said claim petition claiming compensation
against the 5th respondent and appellant, being the owner and insurer of
the motorcycle bearing Registration No.TN 21 M 4852 respectively.
4.The 5th respondent - owner of the motorcycle motorcycle bearing
Registration No.TN 21 M 4852 remained exparte before the Tribunal.
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C.M.A.No.24 of 2021
5.The appellant-Insurance Company filed counter statement and
denied all the averments made by the respondents 1 to 4 in the claim
petition. According to appellant, the allegations stated in the claim
petition are false and are invented only for the purpose of claiming
compensation from the appellant. As per FIR, it is very clear that the 5th
respondent's motorcycle was set up in this case for the purpose of
claiming compensation from the appellant. The deceased Kamalakannan
only drove the motorcycle in a rash and negligent manner and dashed
against the unknown vehicle and thereafter a false case was set up as if
the 5th respondent dashed on the backside of the motorcycle driven by the
deceased. There was contributory negligence on the part of the deceased.
At the time of accident, the rider of the motorcycle belonging to 5 th
respondent was not having driving license to ride the motorcycle and the
motorcycle belonging to 5th respondent was not having any insurance
coverage with the appellant. Hence, the appellant is not liable to pay any
compensation to the respondents 1 to 4. The respondents 1 to 4 have to
prove that they are the legal heirs of the deceased. The appellant denied
the age, avocation and income of the deceased. In any event, the quantum
of compensation claimed by the respondents 1 to 4 is highly excessive
and prayed for dismissal of the claim petition as against the appellant.
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C.M.A.No.24 of 2021
6.Before the Tribunal, the 1st respondent examined herself as
P.W.1, one Murali, eyewitness to the accident was examined as P.W.2 and
one Meenakumari, Secretary of the Kilambi Village Co-operative Town
Bank Limited was examined as P.W.3 and 14 documents were marked as
Exs.P1 to P14. The appellant examined one Muthu, Sub Inspector of
Police, Baluchetty Chatram as R.W.1, one Haridoss, Investigation Officer
of the appellant as R.W.2 and Dr.Abinandaraju, Assistant Surgeon,
Kancheepuram Government Hospital as R.W.3 and marked 4 documents
as Exs.R1 to R4.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent
driving by the rider of the motorcycle belonging to 5th respondent and
directed the appellant-Insurance Company to pay a sum of
Rs.17,98,000/- as compensation to the respondents 1 to 4.
8.To set aside the said award dated 29.11.2019, made in
M.C.O.P.No.298 of 2013, the appellant has come out with the present
appeal.
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C.M.A.No.24 of 2021
9.The learned counsel appearing for the appellant-Insurance
Company contended that the Tribunal failed to consider that FIR was
registered 12 hours after the alleged accident. There is no document to
show that the rider of the motorcycle belonging to 5 th respondent was
arrested to support Ex.P14 / Remand Report. The vehicle number of the
5th respondent was inserted in Ex.R1 / Accident Register Extract. The
damages caused to the vehicle of the deceased as per the Motor Vehicle
Inspector's Report does not support the claim of the respondents 1 to 4
that accident occurred when the vehicle of the 5th respondent dashed on
the backside of the motorcycle driven by the deceased. The Tribunal
failed to appreciate the fact that the case remained undetected till the date
of final award. The motorcycle belonging to 5th respondent was not
involved in the accident. The deceased who was under the influence of
alcohol, fell down from the motorcycle and got injured. The Tribunal
erred in fixing the entire negligence negligence on the rider of the
motorcycle belonging to 5th respondent. The Tribunal ought to have fixed
contributory negligence on the deceased who drove the motorcycle under
the influence of alcohol. In view of the above, the award of the Tribunal
fixing the liability on the appellant is erroneous and prayed for setting
aside the award of the Tribunal.
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C.M.A.No.24 of 2021
10.The learned counsel appearing for the respondents 1 to 4 made
his submissions in support of the award passed by the Tribunal and
prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant –
Insurance Company as well as the learned counsel appearing for the
respondents 1 to 4 and perused the entire materials on record.
12.From the materials on record, it is seen that it is the case of the
respondents 1 to 4 that on the date of accident, while the deceased
Kamalakannan was proceeding in the motorcycle bearing Registration
No.TN 21 AB 1396 from Kilambi to Kanchipuram, near Fashion
Company at Magamedu, the rider of the motorcycle bearing Registration
No.TN 21 M 4852 belonging to 5th respondent, who was riding the
motorcycle behind the motorcycle driven by the said Kamalakannan,
drove the same in a rash and negligent manner and dashed on the
backside of the motorcycle driven by the said Kamalakannan and caused
the accident. Due to the injuries sustained in the accident, the said
Kamalakannan died. To substantiate their case, the 1st respondent
examined herself as P.W.1 and one Murali, eyewitness to the accident
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C.M.A.No.24 of 2021
was examined as P.W.2. Further, the respondents 1 to 4 also marked the
FIR as Ex.P1, which was registered against the rider of the motorcycle
bearing Registration No.TN 21 M 4852 belonging to 5 th respondent and
also filed Ex.P14 / Remand Report. P.W.2 deposed that the accident
occurred only due to the rash and negligent driving by the rider of the
motorcycle bearing Registration No.TN 21 M 4852 belonging to 5th
respondent.
12(i). On the other hand, it is the case of the appellant in the
counter statement that the vehicle belonging to 5th respondent was not
involved in the accident and the respondents 1 to 4 in collusion with 5th
respondent made false claim against the 5th respondent and appellant. The
appellant examined the Sub Inspector of Police, Baluchetty Chatram as
R.W.1. R.W.1 based on the records deposed that FIR was registered
against the rider of the motorcycle bearing Registration No.TN 21 M
4852 belonging to 5th respondent and the rider of the motorcycle bearing
Registration No.TN 21 M 4852 was arrested and remanded. The
appellant also contended that the vehicle No.TN 21 M 4852 of the 5 th
respondent's motorcycle was inserted in the Accident Register Extract. To
substantiate their contention, they examined Dr.Abinandaraju, Assistant
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C.M.A.No.24 of 2021
Surgeon, Kancheepuram Government Hospital as R.W.3. R.W.3 deposed
that vehicle No.TN 21 M 4852 was mentioned in the side of the Report.
The appellant has not proved that there is insertion of the vehicle number
in the Accident Register Extract. The appellant has also not examined the
Doctor who recorded the statement in the Accident Register Extract and
also not examined any witness to prove that deceased dashed on some
other vehicle and got injured. In the grounds of appeal, the appellant has
taken a different stand that deceased who was under the influence of
alcohol, fell down from the motorcycle and got injured. On the other
hand, R.W.3, who was examined on behalf of the appellant, deposed that
deceased was brought in an unconscious state and there was no alcohol
smell. The Tribunal considering the evidence of P.W.1, P.W.2, Ex.P1 /
FIR, Ex.P14 / Remand Report, evidence of R.W.3, held that accident
occurred only due to rash and negligent driving by the rider of the
motorcycle belonging to 5th respondent. The Tribunal also held that the
rider of the 5th respondent contributed to the accident.
12(ii). The contention of the learned counsel appearing for the
appellant that the Tribunal erred in fixing the entire liability on the
appellant, after holding that rider of the motorcycle belonging to 5th
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C.M.A.No.24 of 2021
respondent contributed negligence is concerned, a reading of the award
in its entirety, makes it clear that the Tribunal has held that accident has
occurred only due to rash and negligent driving by the rider of the
motorcycle belonging to 5th respondent and fixed entire negligence on the
part of the rider of the motorcycle belonging to 5th respondent. There is
no error in the said finding of the Tribunal warranting interference by this
Court.
13.In the result, this Civil Miscellaneous Appeal is dismissed and a
sum of Rs.17,98,000/- awarded by the Tribunal as compensation to the
respondents 1 to 4, along with interest and costs is confirmed. The
appellant-Insurance Company is directed to deposit the award amount
along with interest at the rate of 7.5% per annum from the date of
petition till the date of deposit, less the amount already deposited, if any,
within a period of six weeks from the date of receipt of a copy of this
judgment, to the credit of M.C.O.P.No.298 of 2013, on the file of the
Motor Accident Claims Tribunal, Additional District Court - Fast Track
Court, Kanchipuram. On such deposit, the respondents 1 & 4 are
permitted to withdraw their respective share of the award amount as per
the ratio of apportionment fixed by the Tribunal, along with
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C.M.A.No.24 of 2021
proportionate interest and costs, less the amount if any, already
withdrawn by making necessary applications before the Tribunal. The
share of the minor respondents 2 & 3 are directed to be deposited in any
one of the Nationalized Banks, till the minor respondents 2 & 3 attain
majority. On such deposit, the 1st respondent, being the Mother of the
minor respondents 2 & 3 is permitted to withdraw the accrued interest
once in three months for the welfare the minor respondents 2 & 3.
Consequently the connected Miscellaneous Petition is closed. No costs.
(V.M.V., J) (T.V.T.S., J)
12.09.2022
krk
Index : Yes / No
Internet : Yes / No
To
1.The Additional District Judge,
Motor Accidents Claims Tribunal,
Fast Track Court,
Kancheepuram.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.24 of 2021
V.M.VELUMANI, J.
and
T.V.THAMILSELVI, J.
krk
C.M.A.No.24 of 2021
12.09.2022
https://www.mhc.tn.gov.in/judis
