Madras High Court
The Branch Manager vs Sathish Kumar on 20 June, 2023
C.M.A(MD)No.29 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.29 of 2017
and
C.M.P(MD)No.281 of 2017
The Branch Manager,
Oriental Insurance Company Limited,
Door No.II 8 Esplanade, 4th Floor,
Chennai-600 108. ... Appellant/3rd Respondent
Vs.
1.Sathish Kumar ... Respondent/Claimant
2.The Managing Director,
T.N.S.T.C. (Kumbakonam) Ltd.,
Railway Station New Road,
Kumbakonam – 612 001.
3.M/s.Chettinad Logistic (P) Ltd.,
Rani Seethai Hall, 8th Floor,
603, Anna Salai,
Chennai. ... Respondents/Respondents 1&2
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, to set aside the order of the tribunal of MACT cum
District Judge, Karur made in M.C.O.P.No.402 of 2009, dated
15.12.2011.
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C.M.A(MD)No.29 of 2017
For Appellant : Mr.C.Jawahar Ravindran
For R1 : Mr.N.Sudhagar Nagaraj
For R2 : Mr.D.Sivaraman
For R3 : No Appearance
JUDGMENT
The present appeal has been filed by the insurance company
challenging the award passed by the Motor Accident Claims Tribunal,
Karur in M.C.O.P.No.402 of 2009.
2. According to the injured claimant, he was a passenger in the bus
belonging to the transport corporation. While he was travelling in the
said bus at about 4.30 p.m on 24.05.2009, the bus was driven in a rash
and negligent manner and it dashed against a lorry owned by the 2nd
respondent and insured with the 3rd respondent. The claimant has further
contended that the accident has happened solely due to the rash and
negligent driving on the part of the driver of the transport corporation. In
the prayer column, he had prayed for an award only as against the
transport corporation.
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C.M.A(MD)No.29 of 2017
3. The insurance company of the lorry had filed a counter
contending that the accident has taken place only due to the rash and
negligent driving on the part of the bus belonging to the transport
corporation.
4. The tribunal after considering the oral and documentary
evidence, has arrived at a finding that the accident has taken place only
due to the rash and negligent driving on the part of the lorry and
thereafter, proceeded to fix the compensation at the rate of Rs.3,07,000/-
and had directed the owner of the lorry and the insurance company to pay
the compensation. Challenging the said award, the present appeal has
been filed by the insurance company of the lorry.
5. According to the learned counsel appearing for the insurance
company, even as per the claim petition, the entire negligence was on the
part of the driver of the transport corporation bus. It is specifically
contended in Paragraph No.6 of the claim petition that the lorry owner
and the insurer have been added only as formal parties. He further
pointed out that the prayer in the claim petition was directed only as
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C.M.A(MD)No.29 of 2017
against the transport corporation. That being so, the tribunal was not
right in shifting the liability upon the lorry and the insurer of the said
lorry. Hence, he prayed for allowing the appeal.
6. Per contra, the learned counsel appearing for the transport
corporation had contended that due to some inadvertent mistake, they
had remained ex parte and they would like to file a counter and contest
the allegations made in the claim petition. Hence, he prayed for an order
of remand to the claims tribunal to establish the fact that their driver was
not responsible for the accident.
7. The learned counsel appearing for the claimant had contended
that the entire award amount has been deposited by the insurance
company and they have withdrawn only 50% of the same. In case, if an
order of remand is passed, it will be difficult for them to enjoy the fruits
of the award amount. Hence, he prayed that he may be permitted to
withdraw the balance 50% also and after remand, the contest may be
restricted to the inter se dispute between the transport corporation and
the insurance company.
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C.M.A(MD)No.29 of 2017
8. I have carefully considered the submissions made on either side
and perused the records.
9. A careful reading of the claim petition indicates that the
claimant being a passenger of the transport corporation bus, has
categorically made allegations of rash and negligent driving only upon
the driver of the transport corporation. The prayer in the claim petition is
also directed only as against the transport corporation. Therefore, it is
clear that the lorry owner and its insurer would be taken by surprise if
any liability is shifted upon them without any pleading on the side of the
claimant. After considering the oral and documentary evidence, the
tribunal has arrived at a finding that the driver of the lorry was negligent
and only due to the said fact, the accident has taken place. However, this
finding has been arrived at when the transport corporation had remained
ex parte without even filing a counter. Therefore, this Court is of the
view that the matter should be remitted back to the file of the Motor
Accident Claims Tribunal to decide the inter se liability between the
transport corporation bus and the lorry owned by the 2nd respondent.
However, the claimant shall not be dragged into the said dispute. The
claimant shall be permitted to withdraw the balance 50% amount along
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C.M.A(MD)No.29 of 2017
with accrued interest. In case, if the tribunal arrives at a finding that the
transport corporation is liable to pay the compensation, the insurance
company is at liberty to file execution proceedings in this claim petition
itself for recovering the award amount from the transport corporation.
10. In view of the above said deliberations, this Court passes the
following orders:
(i) The matter is remitted back to the file of Motor
Accident Claims Tribunal, Karur. After remand, the
transport corporation shall file their counter within a period
of four (4) weeks from the date of receipt of notice from the
tribunal.
(ii) The claimant shall be permitted to withdraw the
balance amount along with accrued interest.
(iii) In case, the tribunal arrives at a finding that the
driver of the transport corporation was responsible for the
accident, the award amount can be recovered by the
insurance company by filing execution proceeding in the
claim petition itself.
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C.M.A(MD)No.29 of 2017
11. With the above said observations, this Civil Miscellaneous
Appeal stands allowed. The finding relating to negligence recorded by
the tribunal are hereby set aside and it is open to the owners of both the
vehicles to let in fresh evidence to establish the negligence. No costs.
Consequently, connected Civil Miscellaneous Petition is closed.
20.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Motor Accident Claims Tribunal
cum District Judge,
Karur.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.29 of 2017
R.VIJAYAKUMAR,J.
gbg
Judgment made in
C.M.A(MD)No.29 of 2017
20.06.2023
https://www.mhc.tn.gov.in/judis
