Madras High Court
M/S.National Insurance Company ... vs Solaimalai (Died) on 23 June, 2023
C.M.A(MD)No.1316 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1316 of 2013
M/s.National Insurance Company Ltd.,
Through its Divisional Manager,
North Veli Street,
Madurai. ... Appellant/2nd Respondent
Vs.
1.Solaimalai (Died) ... Respondent/Petitioner
2.M.Noor Sherif ... Respondent/1st Respondent
3.Sarala Devi
4.Saravanakumar
5.Sivakumar
6.Sasikumar ... Proposed Respondents
(R3 – R6 are brought on record as legal heirs of the
deceased R1 vide Court order, dated 14.12.2021 made
in C.M.P(MD)Nos.7058,7059 & 7061 of 2021)
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, against the judgment and decree, dated 30.03.2012
passed in M.C.O.P.No.2306 of 2005 on the file of Additional District
Judge/Fast Tract Court No.2/MACT, Madurai.
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C.M.A(MD)No.1316 of 2013
For Appellant : M/s.P.Malini
For Respondents : No Appearance
JUDGMENT
The present appeal has been filed by the insurance company
challenging the award passed in M.C.O.P.No.2306 of 2005 on the file of
Motor Accident Claims Tribunal, Madurai primarily on the ground of
non-involvement of the vehicle.
2. According to the injured claimant, while he was on a religious
Pathayathra on 16.02.2005, at about 08.30 p.m., a two wheeler belonging
to the 1st respondent and insured with the 2nd respondent had dashed
against him and caused serious injuries. He was admitted to Apollo
hospital, Madurai for treatment.
3. According to the petitioner, he is in an immobilized condition
from the date of the accident and he is bedridden. His left leg below the
knee has been amputated. Hence, he prayed for a compensation of
Rs.14,00,000/-.
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C.M.A(MD)No.1316 of 2013
4. The insurance company had filed a counter contending that the
vehicle belonging to the 1st respondent was not at all involved in the said
accident and it has been put up in order to claim compensation from the
2nd respondent insurance company. They have also questioned the
manner of accident and quantum of compensation as prayed for.
5. The tribunal after considering the oral and documentary
evidence, had relied upon Exhibit P.1/F.I.R and the deposition of P.W.1
to arrive at a finding that the two wheeler belonging to the 1st respondent
alone was involved in the accident. It further found that the accident had
taken place only due to the rash and negligent driving on the part of the
1st respondent.
6. The tribunal further found that the disability is 70% as per
Exhibit P.20 disability certificate. The tribunal proceeded to award a sum
of Rs.4,30,000/- towards compensation. This award is under challenge in
the present appeal.
7. The learned counsel appearing for the appellant had contended
that there is a serious doubt with regard to the involvement of the two
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C.M.A(MD)No.1316 of 2013
wheeler belonging to the 1st respondent. According to the learned counsel
appearing for the appellant, the claimant is running an electrical shop in
K.Pudur area in Madurai. The 1st respondent is also residing in the same
locality. The accident is said to have taken place near Aruppukottai. It
has not been explained why the two wheeler owned by a person in
Madurai has met with an accident in Aruppukottai. Therefore, a serious
doubt has been raised with regard to the involvement of the accident.
Hence, she prayed for allowing the appeal.
8. Though the claimants have been served, there is no appearance
either in person or through counsel.
9. It could be seen from the records that at the time of granting of
interim stay, this Court has permitted the claimants to withdraw the 50%
of the award amount.
10. It is contended on the side of the claimant that the accident has
taken place on 16.02.2005 at about 08.30 p.m. Though immediately he
was rushed to Apollo Hospital, F.I.R has been registered only after a
period of 5 days. In the F.I.R, the vehicle belonging to the 1 st respondent
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C.M.A(MD)No.1316 of 2013
has been mentioned. According to the claimant, himself, his son and 25
other persons were on Padhayathra. However, no other 3rd party has been
examined to prove the involvement of the vehicle. That apart, it is
extracted in the cross-examination of P.W.1 that he is running an
electrical shop in K.Pudur, Madurai. The address of the owner of the
offending vehicle is also K.Pudur, Madurai. It has not been explained on
the side of the claimant how the vehicle owned by a person in K.Pudur,
Madurai met with an accident at Aruppukottai on 16.02.2005. Therefore,
it is clear that the vehicle belonging to the 1st respondent has been set up
by the claimant in view of the fact that they were not able to identify the
vehicle which had caused the accident resulting in grievous injuries.
When the involvement of the 1st respondent vehicle has not been proved,
the question of mulcting the liability upon the insurance company would
not arise.
11. In view of the above said deliberations, the appeal filed by the
insurance company is allowed. The 50% of the award amount has already
been withdrawn by the claimants. However, any award amount that has
already withdrawn by the claimants shall not be recovered. The balance
amount deposited by the insurance company shall be refunded to the
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C.M.A(MD)No.1316 of 2013
insurance company along with accrued interest.
12. With the above said observations, this Civil Miscellaneous
Appeal stands allowed. No costs.
23.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Additional District Judge/
Fast Tract Court No.2/MACT,
Madurai.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.1316 of 2013
R.VIJAYAKUMAR,J.
gbg
Judgment made in
C.M.A(MD)No.1316 of 2013
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C.M.A(MD)No.1316 of 2013
23.06.2023
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