Madras High Court
The New India Assurance Co.Ltd vs Tamilselvan on 4 August, 2023
C.M.A.No.1138 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.08.2023
CORAM :
THE HON'BLE MR. JUSTICE P.VELMURUGAN
C.M.A.No.1138 of 2018
and
C.M.P.No.9413 of 2018
The New India Assurance Co.Ltd.,
Lajapet Nagar,
New Delhi. ... Appellant
vs.
1.Tamilselvan
2.M/s.Ashish Leasing Company,
No.75, Link Road,
Lajpat Nagar,
New Delhi. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the award and decree in M.C.O.P.No.991 of
2001 dated 09.09.2005 on the file of the Motor Accident Claims Tribunal
(Principal Subordinate Judge) at Chengalpattu District.
For Appellant : Mr.J.Chandran
For Respondents : Mr.S.Jaganathan
for R1
R2- Notice Dispensed with
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C.M.A.No.1138 of 2018
JUDGMENT
Challenging the Award dated 09.09.2005 passed in
M.C.O.P.No.991 of 2001 on the file of the Motor Accident Claims Tribunal
(Principal Subordinate Judge) at Chengalpattu District, the Insurance
Company, has filed the above Civil Miscellaneous Appeal.
2. The case of the claimant before the Tribunal is that on
06.04.1994 at about 8.50 a.m., when the claimant was crossing the road in
his bicycle, near War Cemetry Road, Mount Poonamallee Road, the driver
who had driven the Maruti Van bearing Registration No.DL-3CC-0181 in a
rash and negligent manner, dashed against the claimant. Due to the said
impact, the claimant sustained grievous injuries. It is the further case of the
injured claimant that he being a minor school student with disability of
55%, is entitled for compensation of Rs.1,50,000/-.
3. The first respondent being the owner and the second
respondent being the insurer of the said vehicle remained ex-parte before
the Tribunal.
4. To substantiate the case on the side of the claimant, the
claimant examined himself as P.W.1 and marked documents Ex.P1 to
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C.M.A.No.1138 of 2018
Ex.P6. On the side of the respondents, neither oral evidence nor
documentary evidence was adduced before the Tribunal.
5. The Tribunal, after considering the oral and documentary
evidence available on record, awarded a total compensation of Rs.87,250/-
with future interest at 7.5% per annum from the date of claim petition till
the date of deposit with costs and the Tribunal directed the Insurance
Company to deposit the entire compensation into the Court.
6. Challenging the above Award of compensation, the
Insurance Company Limited has filed the present Civil Miscellaneous
Appeal.
7. The learned counsel for the appellant/Insurance Company
has submitted that the Award passed by the Tribunal is an ex-parte Award.
The appellant was not served with notice from the date of accident on
06.04.1994 till the date of judgment on 09.09.2005. He further submitted
that the compensation awarded by the Tribunal is highly excessive,
exorbitant and unsustainable in law. Further, the Tribunal held that the
accident had occurred only due to rash and negligent driving of the driver of
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C.M.A.No.1138 of 2018
the offending vehicle, however, without fixing the liability on the owner of
the offending vehicle, the Tribunal erroneously fixed the liability on the
insurer.
8. This Court, while perusing the records, found that the panel
counsel of the Insurance Company, who undertook to file vakalat, has not
entered appearance or filed any vakalat before the Tribunal. It is further
seen that the Insurance Company was duly served with notice, but failed to
appear before the Tribunal. Since there was no response from the appellant
before the Tribunal, the Tribunal after examining the claimant as P.W.1 and
the documents marked by P.W.1 as Ex.P1 to Ex.P6, awarded compensation.
9. Now the present appeal was filed only on the ground
that no summons were served and without giving an opportunity to the
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C.M.A.No.1138 of 2018
appellant/Insurance Company, the Tribunal passed an ex-parte Award,
which is totally in correct.
10. The fact remains that notice was duly served on the
appellant/Insurance Company before the Tribunal and one of the panel
counsel for the Insurance Company also undertook to file vakalat, but he
failed to do so, and considering the long pendency of the claim petition, the
Tribunal passed an ex-parte Award. The appellant/Insurance Company has
not come to this Court with clean hands, and hence, this Court is not
inclined to set aside the impugned Award passed by the Tribunal.
11. Admittedly, the claim petition was filed in the year 2001
and in the said claim petition, Award and decree was passed only in the year
2005. The Tribunal has not passed award within a hour after service of
summons, since there was no response from the Insurance Company, the
Tribunal awarded compensation after four years from the date of filing of
claim petition. This Court does not find any perversity in appreciation of the
Award passed by the Tribunal. This Court also finds that the impugned
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C.M.A.No.1138 of 2018
Award passed by the Tribunal by granting compensation is ''just, fair and
reasonable'', and hence, they are confirmed.
12. There is no merit in the present appeal, which is
accordingly dismissed, confirming the impugned Award passed by the
Tribunal. There shall be no order as to costs in the present appeal.
Consequently, connected miscellaneous petition is closed.
13. The appellant/Insurance Company is directed to deposit the
above entire award amount to the credit of M.C.O.P.No.991 of 2001 on the
file of the Motor Accident Claims Tribunal (Principal Subordinate Judge)
Chengalpattu District along with interest and costs awarded by the Tribunal,
from the date of claim 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. On such deposit, the Tribunal is directed
to credit the compensation to the Bank Account of the claimant, by
following the judgment of a Division Bench of this Court in C.M.A.No.428
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C.M.A.No.1138 of 2018
of 2016, dated 11.03.2016 (reported in 2016 (2) LW 561 - The Divisional
Manager, The Oriental Insurance Company Limited, Kannur Vs. Rajesh and
others). The claimant is permitted to withdraw the award amount, less the
amount already withdrawn, if any, together with interest and costs.
04.08.2023
Index: Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ms
To
1. The Motor Accident Claims Tribunal
(Principal Subordinate Judge),
Chengalpattu District.
2.The Section Officer,
V.R.Section,
High Court, Madras.
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C.M.A.No.1138 of 2018
P.VELMURUGAN, J.
ms
C.M.A.No.1138 of 2018
04.08.2023
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