Madras High Court
The Oriental Insurance Company Limited vs Tmt.Devaki on 6 December, 2023
Author: M.Dhandapani
Bench: M.Dhandapani
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.M.A.No.1600 of 2020
and CMP.No.11797 of 2020
The Oriental Insurance Company Limited,
Rep. By its Branch Manager,
3rd Party Claims, HUB,
Vijayalakshmi complex, I Floor,
Phase-II, Sathuvachari, Vellore. .. Appellant
Vs.
1. TMT.DEVAKI
2. P.BHARATHI
3. P.KANNAN
4. P.MANIKANDAN
5. S.RAVIKUMAR
6. M.P.SENGOTTAIN
7. G.RAVIKUMAR
8. M/S.UNITED INDIA INSURANCE Co. Ltd.,
REP BY ITS DIVISIONAL MANAGER,
KBS MOTOR BUILDINGS,
NO.36, KATPADI ROAD,
GANDHI NAGAR, VELLORE.
.. Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 25.10.2019 made
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2
in MACT. OP.No.160 of 2011 on the file of the Motor Accidents Claims
Tribunal (Subordinate Court) Vaniyambadi.
For Appellant : Mr.P.Sankaranarayanan
For Respondents : Mr. K.Selvam R7
RR1 to 6 – No appearance
JUDGMENT
This appellant/Insurance Company has come forward with this appeal
seeking quashment of the judgment and decree dated 25.10.2019 made in
MACT. OP.No.160 of 2011 on the file of the Motor Accidents Claims
Tribunal (Subordinate Court) Vaniyambadi.
2.Brief fact which are necessary for disposal of this appeal are as
follows:-
On 30.10.2005, the deceased was riding a motor cycle along with his
friend bearing Reg. No.TN 23 Y 1654 belonging to the 5th respondent and
insured with the appellant. At about 23.15 hours a lorry bearing Reg.
No.KA 01 C 2475 belong to the 5th and 6th respondent, parked on the left
side of the National Highways Road without any caution light, at the time,
the deceased applied sudden break and hit rear side of the lorry. Due to
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which, the deceased and the pillion rider thrown away from the motor cycle
and sustained fatal injuries and on the spot, the deceased died. Thereby, the
dependents of the deceased/claimants have filed a claim Petition before the
Motor Accidents Claims Tribunal under Section 166 of the Motor Vehicle
Act, claiming compensation of Rs.10,00,000/-.
3. Before the Tribunal, during trial, in order to prove the case, on the
side of the claimant, three witnesses were examined viz., PW1 and PW3 and
marked 22 documents viz., Exs.P1 to P22, On the side of the Insurance
company, three witnesses were examined and six documents were marked.
The Tribunal, considering the pleadings, oral and documentary evidence,
allowed the petition in part and awarded a sum of Rs.10,77,000/- as
compensation to the claimants. Aggrieved by the said award, the appellant
has filed this appeal before this Court for reduction of compensation.
4. The learned counsel for the appellant/Insurance company
submitted that the Tribunal has failed to consider that the deceased was a
tortfeaser and FIR has been lodged against the deceased who hit behind the
parked lorry and caused accident. Therefore, the appellant cannot be
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fastened with any liability and hence, the appellant is not liable to pay
compensation. Therefore, this Court may set aside the award and allow this
petition.
5.The learned counsel appearing for the respondents/claimants
contended that due to the accident the deceased sustained head injury and
died on the spot itself. The Tribunal has awarded the compensation for the
death of the deceased, which is just and reasonable and the same cannot be
interfered with by this Court.
6. This Court gave its careful consideration to the submissions
advanced by the learned counsel appearing on either side and perused the
materials available on record.
7. The factum of the accident is not disputed by the parties.
Admittedly, the deceased met with an accident on 30.10.2005 while he was
riding a motor cycle along with his friend and hit behind the parked lorry in
the National Highways and sustained fatal head injury and died. It is the
main contention of the appellant that the appellant is not liable to pay
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compensation for the death of the deceased as negligence is on the part of
the deceased and FIR also registered as against the deceased. However, the
Tribunal has fixed the liability as against the appellant and owner of the
lorry driver, which is not sustainable one.
8. On perusal of the witness of PW2, it is found that the deceased was
driving the motor cycle and caused accident by hitting behind the stationed
lorry. The lorry was parked in the left side of the two way road without any
parking light or indication. As per the Motor Vehicle Inspection report,
there is no mechanical defect in the said stationed lorry. Though the
deceased has contributed for the accident, the appellant being the insurer of
the two wheeler, is liable to pay compensation to the first compensation.
Since the accident was not occurred purely on the rash and negligent driving
of the deceased. Therefore, the findings given by the Tribunal is perfectly in
order and the Tribunal has rightly considered the issue and awarded
compensation, which is just and reasonable and this Court do not find any
reason to interfere with the award.
9. In the result, the civil miscellaneous appeal is dismissed. The
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award passed by the Tribunal is confirmed. No costs. Consequently,
connected Miscellaneous Petition is closed.
06.12.2023
Index : Yes
Speaking Order : Yes
rli
To
The Motor Accidents Claims Tribunal (Subordinate Court) Vaniyambadi.
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M.DHANDAPANI,J.
Rli
06.12.2023
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