Madras High Court
Kandipan vs Sekar on 18 August, 2023
C.M.A.No.1273 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.08.2023
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
C.M.A. No.1273 of 2018
1. Kandipan
2. Minor. Venkatesan
3. Minor. Santhosh
Minor petitioners are rep. by their father and guardian
Kandipan, the first petitioner herein ... Appellants
Vs.
1. Sekar
2. IFFCO TOKIO General Insurance Co. Ltd.
IFFKO Bhavan, No.128, Habibullah Road
4th Floor, T.Nagar
Chennai - 17 ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the order dated 01.12.2016 made in
M.A.C.T.O.P.No.4015 of 2013 on the file of the Chief Judge, Motor
Accident Claims Tribunal, Chennai.
For Appellants : M/s.A.Subadra
For Respondents : R1-Notice Served, No Appearance
Mrs.K.Saraswathi for R2
1/12
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C.M.A.No.1273 of 2018
JUDGMENT
This Civil Miscellaneous Appeal is filed to set aside the order
dated 01.12.2016 made in M.A.C.T.O.P.No.4015 of 2013 on the file of the
Chief Judge, Motor Accident Claims Tribunal, Chennai.
2.The 1st appellant is the husband and the 2nd and 3rd appellants
are the sons of the deceased. The 1st respondent is the owner and the 2nd
respondent is the Insurer of the offending vehicle.
3. The case of the claimants is that on 26.01.2013 at about 7 p.m.,
the deceased was travelling as a pillion rider in the two wheeler bearing
Regn.No.TN-21-AL-1823 with one Sekar and the said Sekar was driving the
two wheeler in a rash and negligent manner. While the said Sekar was trying
to cross the road at Sirunai, an unregistered motor cycle which was suddenly
coming in the opposite direction, hit his two wheeler due to which, the
deceased fell down and sustained grievous injuries. Subsequently, she was
admitted in the hospital and later, she died on 31.01.2023.
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C.M.A.No.1273 of 2018
4. The husband of the deceased, along with his minor sons, had filed a
claim petition in M.C.O.P.No.4015 of 2013 on the file of the Motor Accident
Claims Tribunal (Small Causes Court) Chennai, stating that the deceased was
one of the earning members of the family and after her demise, the appellants,
who are the husband and sons of the deceased, were struggling for survival.
Since the accident had occurred solely due to the rash and negligent driving
of the said Sekar, the 1st respondent herein, the appellants filed the claim
petition against the said Sekar and the Insurer of the 1st respondent's vehicle,
claiming compensation of Rs.27,00,000/- restricted to Rs.20,00,000/- for the
death of the deceased.
5. Initially, the Tribunal, passed an ex-parte award. Subsequently, after
hearing the learned counsel for the claimants and the learned counsel for the
Insurance Company, the Tribunal dismissed the claim petition by order dated
01.12.2016. Before the Tribunal, the 1st respondent herein was set ex-parte.
6. Challenging the said order of dismissal, the claimants have filed the
present appeal.
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C.M.A.No.1273 of 2018
7. Before the Tribunal, in order to substantiate the claim, on the side of
the claimants, 2 witnesses were examined as P.W.1 and P.W.2 and 11
documents were marked as Ex.P.1 to Ex.P.11. On the side of the respondents,
one witness was examined as R.W.1 and 2 documents were marked as Ex.R1
and R2.
8. The learned counsel for the appellants/claimants submitted that the
accident happened due to head on collision of 2 two wheelers. One is bearing
Regn.No.TN-21-AL-1823 rode by the 1st respondent herein and the other
vehicle is an unregistered two wheeler, rode by an unknown person. But the
accident had occurred only due to the rash and negligent riding of the 1st
respondent. Though the 1st respondent himself gave the complaint before the
police against the rider of the unknown vehicle, since the said unknown
person was not able to trace, the case was closed as undetected. Whereas, the
rough sketch filed on the side of the 2nd respondent/Insurance Company
clearly shows that 2 two wheelers were involved in the accident and due to
the rash and negligent riding of the 1st respondent only the accident had
happened and therefore, the 1st respondent is responsible. Since the 2nd
respondent is the insurer of the vehicle of the 1st respondent, the 2nd
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C.M.A.No.1273 of 2018
respondent is also responsible for indemnifying the loss caused to the family
of the deceased. Even in the Accident Register, it is clearly stated that 2 two
wheelers were involved in the accident and it is head on collision. Therefore,
the Tribunal ought to have fixed 50% contributory negligence on the part of
the 1st respondent and ought to have awarded 50% of compensation and the
2nd respondent being the insurer of the 1st respondent's vehicle, they are liable
to pay the compensation to the claimants. Further, P.W.2 who is the
eyewitness to the accident, has clearly stated about the manner of the accident
and as per his evidence, the accident had happened only due to the rash and
negligent riding of the 1st respondent and therefore, the Tribunal ought to
have awarded compensation. Though initially ex-parte award was passed by
the Tribunal, subsequently, after enquiry and validating the oral and
documentary evidence, the Tribunal dismissed the claim petition as not
maintainable. The Tribunal failed to consider the rough sketch filed by R.W.1
and also the evidence of P.W.2/eye witness and erroneously held that the
accident happened only due to rash and negligent riding of the rider of the
unknown vehicle and not by the 1st respondent, which warrants interference.
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C.M.A.No.1273 of 2018
9. The learned counsel for the 2nd respondent/Insurance Company
submitted that the deceased was a pillion rider of the two wheeler which was
ridden by the 1st respondent and that the 1st respondent is the one who gave
the complaint before the police against an unknown rider of an unregistered
two wheeler. Subsequently, the case was closed as undetected since the police
could not trace out the alleged unknown person as well as the unregistered
vehicle. Therefore, the Tribunal rightly held that the accident had occurred
only due to the rash and negligent riding of the rider of the unknown two
wheeler. Therefore, the 1st respondent is not responsible for the accident and
hence, the 2nd respondent is not liable to pay any compensation. Therefore,
the Tribunal exonerated the liability and dismissed the petition as not
maintainable since it was a case of hit and run.
10. Heard both sides and perused the materials available on record.
11. The accident is not in dispute. The fact that the death of the
deceased is due to the accident is also not disputed. The only dispute is on
whose negligence, the accident had happened.
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C.M.A.No.1273 of 2018
12. The 1st respondent is the rider of the motor cycle bearing
Regn.No.TN-21-AL-1823 in which, the deceased had travelled as a pillion
rider. The accident is said to have happened due to head on collision of the
said two wheeler with another unknown unregistered two wheeler. The FIR is
also registered only against the rider of the unknown unregistered two
wheeler. The police has not filed any complaint against the 1st respondent or
even at the time of admitting the deceased in the hospital and making entry in
the Accident Register, nothing has been stated before the doctor that the
accident was only due to rash and negligent driving of the 1 st respondent and
no complaint was given against the 1st respondent, to the police. Even when
the case registered against the unknown rider was closed for the reason that
the unknown rider as well as the unregistered vehicle were not traced, the
appellants have not given any complaint against the 1st respondent.
13. Though the learned counsel for the appellants/claimants
vehemently contended and relied on the rough sketch filed through R.W.1,
who is the official of the 2nd respondent/Insurance Company, it is not an
admissible evidence and that R.W.1 is not an eyewitness to this occurrence.
Though the learned counsel solely relied on the evidence of P.W.2, who is
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C.M.A.No.1273 of 2018
alleged to be the sole eyewitness to the occurrence, except the proof affidavit
filed by P.W.2, there is no material to prove that he was present nearby a tea
shop in the occurrence place and there is no material to corroborate the
presence of P.W.2 in the occurrence place at the time of accident. Further,
prior to filing of the claim petition, nowhere his name was mentioned to show
that he was present at the time of accident. Therefore, in the absence of any
material and in view of the fact that the FIR was registered against the rider
of the unknown vehicle on the basis of the complaint given by the 1st
respondent, it is to be accepted that the the accident had occurred only due to
the rash and negligent riding of the unknown vehicle, unless it is contrarily
proved.
14. Though the learned counsel for the appellants/claimants attempted
to submit that the accident was due to the rash and negligent driving of the
riders of both the two wheelers, due to which, there was head on collision, the
claimants ought to have called for the Motor Vehicle Inspector's report to
prove that the two wheeler of the 1st respondent was damaged due to head
on collision nor summoned the Motor Vehicle Inspector and examined him.
Therefore, in the absence of any material to prove the claim that the accident
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C.M.A.No.1273 of 2018
had happened due to the rash and negligent riding of the 1st respondent, the
Tribunal on finding that it is a case of hit and run and the accident had
occurred only due to the rash and negligent riding of the unknown rider,
dismissed the claim petition as not maintainable.
15. No doubt, the appellate Court, as a final Court of fact finding, can
re-appreciate the entire evidence and can give independent findings and need
not simply endorse the views of the Tribunal. When this Court, as an
appellate Court, while re-appreciating the entire materials independently,
does not find any evidence or material to reverse the findings of the Tribunal .
This Court also does not find any material to show that the accident was only
due to the rash and negligent riding of the 1st respondent for which, the 2nd
respondent is liable to pay the compensation. In the absence of the same and
also in the absence of proof that P.W.2 is the eyewitness to the accident, this
Court does not find any reason to fix the negligence against the 1st
respondent. Therefore there is no merit in the appeal and the same is liable to
be dismissed.
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C.M.A.No.1273 of 2018
16. Accordingly, this Civil Miscellaneous Appeal is dismissed.
Consequently, connected Miscellaneous Petition is closed. No Costs.
18.08.2023
ksa-2
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation Case : Yes/No
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C.M.A.No.1273 of 2018
To
1.The Chief Judge,
Motor Accident Claims Tribunal, Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.1273 of 2018
P.VELMURUGAN, J
ksa-2
C.M.A. No.1273 of 2018
18.08.2023
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