Madras High Court
Vijayakumar vs Hubert K John on 3 April, 2023
C.M.A.(MD).No.158 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.158 of 2020
Vijayakumar .....Appellant/Petitioner
-vs-
1. Hubert K John
2. The United India Insurance Company Ltd,
Represented by its the Branch Manager,
Monday Market,
Neyyor Post,
Eraniel Village,
Kalkulam Taluk,
Kanyakumari District. .... Respondents/ Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173(1) of the
Motor Vehicles Act, 1988, against the decree and judgment passed by the
learned Subordinate Judge cum Motor Accidents Claims Tribunal,
Padmanabhapuram in M.C.O.P.No.13 of 2016, dated 28.11.2018.
For Appellant : Mr.K.P.Narayanakumar
For Respondents : Mr. N.Dilip Kumar – for R2
: No appearance – for R1
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C.M.A.(MD).No.158 of 2020
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the claimant
challenging the dismissal of the claim petition.
2. According to the claimant, he was travelling as a pillion rider in the
vehicle belonging to and driven by the first respondent herein. While they
were travelling in a two wheeler from Thikkanamcode to Mulagumoodu, an
unknown motor vehicle had hit against the motor vehicle in which they were
travelling and the injured claimant was thrown out of the vehicle and he
sustained injuries. According to the claimant, the first respondent who was
driving the motor cycle alone was responsible for the said accident and due
to the rash and negligent driving, he hit against the other motor vehicle.
Therefore, he claimed a compensation of Rs.3,00,000/- (Rupees Three Lakhs
only) as against the first respondent/owner of the bike and the second
respondent Insurance Company.
3. The owner of the vehicle had remained ex-parte. The second
respondent viz., Insurance company had filed a counter contending that
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C.M.A.(MD).No.158 of 2020
without impleading the owner of the unknown vehicle and the Insurance
Company of the said unknown vehicle, the present claim petition is not
maintainable. The Insurance Company had further contended that the policy
is only an Act Policy. Therefore, the claimant who was travelling in the bike
as a pillion rider is not entitled to receive any compensation from the
Insurance Company. The Insurance Company has also disputed the quantum
of compensation prayed for by the claimant.
4. The Tribunal, after considering the oral and documentary evidence,
arrived at a finding that since the claimant has not impleaded the owner of the
unknown vehicle and the Insurance Company, the claim petition is not
maintainable. The Tribunal further found that he is not entitled to receive any
compensation from his own Insurance Company for the vehicle, in which, he
had travelled. Based upon the said findings, the entire claim petition was
dismissed by the Tribunal. Challenging the said award, the present appeal has
been filed.
5. According to the learned counsel appearing for the
claimant/appellant, it is the specific case of the injured claimant that only
because of the rash and negligent driving of the first respondent, he had hit
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C.M.A.(MD).No.158 of 2020
against the another unknown vehicle. Therefore, the entire negligence is only
upon the first respondent. Hence, the question of impleading the unknown
vehicle or the Insurance Company, does not arise. He further contended that
even assuming that it is an Act policy, the Tribunal ought to have passed an
award as against the first respondent herein. Hence, he prayed for allowing
the appeal and fixing the quantum of compensation.
6. Per contra, the learned counsel appearing for the Insurance Company
had contended that the Policy, which is marked as Ex.R1, discloses that it is a
statutory policy and does not cover the pillion rider. Therefore, for the injuries
sustained by the pillion rider, the compensation cannot be prayed for from the
Insurance Company of the same vehicle.
7. I have carefully considered the submissions made by the learned
counsel on either side.
8. Admittedly, the injured claimant has travelled as a pillion rider in the
two wheeler belonging to the first respondent. It is the specific case of the
claimant that the accident has taken place only due to the rash and negligent
driving of the first respondent. The vehicle driven by the first respondent had
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C.M.A.(MD).No.158 of 2020
dashed against an unknown vehicle only due to his rash and negligent driving
of the first respondent. In view of the above said pleadings, the Tribunal was
not right in holding that the claim petition is not maintainable, for not
impleading the unknown vehicle or their Insurance Company.
9. A perusal of Ex.R1-Policy would clearly indicate that it is an Act
Policy and that it does not cover a pillion rider. Therefore, the Insurance
Company cannot be held liable for payment of compensation of amount for
the rash and negligent driving of the first respondent, who is the driver/owner
of the vehicle.
10. The claimant has not produced any Disability Certificate. The
claimant has produced only the Wound Certificate under Ex.P.4, Discharge
Summary under Ex.P.6, and Medical Bills Ex.P-7 and Ex.P-8. That apart, the
Doctor was examined as P.W.2 who has not deposed anything about the
permanent disability said to have been sustained by the injured claimant.
Therefore, this Court is of the view that no amount of compensation would be
awarded to the claimant under the head of loss of income.
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C.M.A.(MD).No.158 of 2020
11. As far as the Medical Expenses incurred by the injured claimant are
concerned, they are reflected under Ex.P-7. It is the Medical Bills issued by
the private hospital for the period covering 02.01.2015 to 06.01.2015 and the
total bill amount is Rs.36,917/- (Rupees Thirty Six Thousand Nine Hundred
and Seventeen only). That apart, the injured claimant had visited the hospital
for further treatment in the end of January 2015 to April 2015 for treating the
injuries arising out of the said accident, the total bill amount of Rs.6,006/-
(Rupees Six Thousand and Six only). These two medical bills are marked as
Ex.P7 and Ex.P8.
12. In view of the above said deliberations, the appellant/ injured
claimant is entitled to receive a compensation amount of Rs.42,923/- (Rupees
Forty Two Thousand Nine Hundred and Twenty Three only) and the said
amount will carry interest at the rate of 7.5% per annum from the date of
filing of the claim petition. The claim amount shall be paid by the owner of
the vehicle viz., the first respondent in the claim petition.
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C.M.A.(MD).No.158 of 2020
13. Accordingly, this Civil Miscellaneous Appeal stands allowed to the
extent as stated above. There shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
03.04.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Subordinate Judge cum
Motor Accidents Claims Tribunal,
Padmanabhapuram.
2. The United India Insurance Company Ltd,
Represented by its the Branch Manager,
Monday Market,
Neyyor Post,
Eraniel Village,
Kalkulam Taluk,
Kanyakumari District.
3. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD).No.158 of 2020
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.158 of 2020
03.04.2023
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