Madras High Court
Radhakrishnan vs Rajendran on 11 August, 2023
C.M.A.No.1845 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2023
CORAM :
THE HON'BLE MR. JUSTICE P.VELMURUGAN
C.M.A.No.1845 of 2018
Radhakrishnan ... Appellant
Vs.
1.Rajendran
2.The Divisional Manager,
Royal Sundaram General Insurance Co. Ltd.,
Sundaram Towers, No.45 & 46,
Whites Road, Chennai – 600 014. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 by setting aside the judgment and decree dated
21.01.2016 passed in M.C.O.P.No.1482 of 2013 on the file of the Motor
Accidents Claims Tribunal (Special Subordinate Judge) Tirupattur.
For Appellant : Mr.V.Parivallal
For Respondents : R1 – Notice Dispensed with
No appearance for R2
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JUDGMENT
This appeal has been filed by the claimant as against the award
and decree dated 21.01.2016 passed in M.C.O.P.No.1482 of 2013 on the
file of the Motor Accidents Claims Tribunal (Special Subordinate Judge)
Tirupattur.
2. For the sake of convenience, the parties are referred to as per
their ranking before the Tribunal.
3.The petitioner is the claimant, the first respondent is the
owner of the tractor attached with trailer and the second respondent is the
Insurance Company.
4. The brief facts of the case are as follows:
On 04.10.2010 at about 2.45 p.m., the petitioner boarded into
the first respondent's vehicle viz., Tractor bearing Registration No.TN 23
BX 5504 attached with trailer bearing Registration No.TN 28 K 6312 for
loading and unloading the goods from the vehicle. At the time of boarding,
the first respondent's driver suddenly took the vehicle with rash and
negligent manner. Due to the said impact, the petitioner suddenly fell down
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C.M.A.No.1845 of 2018
from the vehicle and sustained grievous injuries all over the body and got
fracture on his right pinna. Immediately after the accident, the petitioner
took treatment in Government Hospital, Vaniyambadi and then he was
referred to Vellore Medical College and Hospital for further treatment.
Thereafter, the petitioner took treatment in Chennai General Hospital.
Seeking compensation against the owner of the Tractor attached with Trailer
and its insurer M/s.Royal Sundaram General Insurance Co. Ltd., the
claimant filed M.C.O.P.No.1482 of 2013 claiming compensation of
Rs.5,00,000/-.
5. The first respondent, who is the owner of the offending
vehicle, remained ex-parte before the Tribunal.
6. The claim petition was contested by the Insurance Company
on various grounds and specifically stated that at the time of accident, the
petitioner, who attempted to board on the back side of the first respondent's
driver i.e. in between the tractor and trailer and he fell down due to
intoxication by consumption of Alcohol. That apart, they had disputed the
other claims made in the claim petition.
7. To substantiate the case on the side of the claimant, the
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C.M.A.No.1845 of 2018
claimant examined himself as P.W.1 and marked documents Ex.P1 to
Ex.P8. On the side of the second respondent/Insurance Company, R.W.1
was examined and Ex.R1 to Ex.R3 were marked.
8. The Tribunal, after considering the oral and documentary
evidence available on record, had come to the conclusion that the accident is
the result of the rash and negligent act of the petitioner i.e due to his
intoxication, he met with the accident and he is not entitled for any
compensation from the respondents as prayed for and dismissed the claim
petition. Challenging the same, the claimant has filed the present Civil
Miscellaneous Appeal.
9. The learned counsel for the appellant/claimant submitted that
the appellant/claimant was working as a Coolie. As a Coolie, he was trying
to board the tractor attached with trailer for loading and unloading the
goods from the vehicle and at that time, the driver of the said offending
vehicle took the vehicle suddenly with rash and negligent manner and that
the claimant fell down and sustained injuries all over his body. Since the
accident took place only due to the rash and negligent act of the driver of
the offending vehicle, the first respondent being owner and the second
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C.M.A.No.1845 of 2018
respondent being the insurer of the offending vehicle, are jointly and
severally liable to pay compensation to the petitioner. He further submitted
that the duty is cast upon the driver to ascertain as to whether the worker
boarded the trailer or not. In this case, without ascertaining that, all of a
sudden, the driver started the vehicle, due to which the petitioner fell down
and sustained injuries. As the petitioner is a poor Coolie, the Tribunal ought
to have allowed the claim petition and awarded compensation as claimed by
the claimant, but without considering the material facts, the Tribunal
dismissed the claim petition.
10. Heard the learned counsel for the appellant and perused
the records. There was no representation for the second respondent.
11. The manner of the accident is admitted. The present appeal
has been filed only questioning the non-fixing liability on the part of the
owner and Insurer of the said offending vehicle.
12. The Points for consideration :
(i) Whether the accident had occurred due to rash
and negligent driving of the driver of the Tractor bearing
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C.M.A.No.1845 of 2018
Registration No.TN 23 BX 5504, attached with trailer bearing
Registration No.TN 28 K 6312 ?
(ii) Whether the second respondent, as the Insurer
of the offending vehicle is liable to pay compensation?
13. To decide the issues, on a perusal of the records, it is seen
that the claimant examined himself as P.W.1 and he has deposed that he was
working as a Coolie and he was trying to board into the trailer for loading
and unloading the goods from the vehicle and at that time, he fell down and
sustained injuries, due to rash and negligent act of the driver of the
offending vehicle by suddenly moving the vehicle, whereas, during cross
examination, the petitioner has clearly stated that he was not a Coolie in the
said tractor and he was working as a coolie in some other place. On the date
of accident, after finishing his lunch, he was about to move to his working
place and at that time, he saw the offending vehicle started to move
suddenly, and he thought that the offending vehicle is going to his working
place and that he tried to board on the back side of the driver i.e., in between
the tractor and trailer and at that time, the driver of the offending vehicle
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C.M.A.No.1845 of 2018
suddenly took the vehicle in a rash and negligent manner. Due to the said
impact, the petitioner sustained injuries. Quite naturally, the driver of the
offending vehicle would not have expected the petitioner or any one
boarding the vehicle from behind, when the vehicle started to move.
Further, the petitioner admitted that at the time of accident, he was under the
influence of intoxication and to prove the same, Ex.P2 and Ex.R2 were
marked. At the time of accident, the claimant was travelling as gratuitous
passenger and he boarded into the vehicle under the influence of
intoxication and that he fell down and sustained injuries. Therefore, the
evidence of the appellant/petitioner clearly shows that the accident had not
occurred due to rash and negligent driving of the driver of the offending
vehicle.
14. This Court, as a final Court of fact finding, re-appreciated
the entire evidence and finds that at the time of accident, the appellant
unauthorizedly tried to board the offending vehicle from the back side of the
first respondent's driver and under the influence of intoxication, he fell
down and sustained injuries. Therefore, the driver of the first respondent is
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C.M.A.No.1845 of 2018
not responsible for the accident and the accident had happened only due to
rash and negligent act of the petitioner. Therefore, the appellant is not
entitled for any compensation from the respondents. The points are
answered accordingly.
15. Considering the facts and circumstances, the appeal sans
merit and the same is accordingly dismissed. There shall be no order as to
costs in the present appeal.
11.08.2023
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ms
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C.M.A.No.1845 of 2018
To
1. The Motor Accidents Claims Tribunal,
Special Subordinate Judge,
Tirupattur.
2.The Section Officer,
V.R.Section,
High Court, Madras.
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C.M.A.No.1845 of 2018
P.VELMURUGAN, J.
ms
C.M.A.No.1845 of 2018
11.08.2023
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