The Divisional Manager vs Sembaruthi
2023 Latest Caselaw 7033 Mad

                                                     1                   C.M.A.No.2808 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 26.06.2023

                                                  CORAM

                                  THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN

                                             C.M.A.No.2808 of 2016


                   The Divisional Manager,
                   The Oriental Insurance Co. Ltd.,
                   Divisional Office, Arunagiri Complex,
                   Ground Floor,
                   25-C, Bypass Road, Hosur- 635 109.                            ...Appellant


                                                    Versus
                   1.Sembaruthi,

                   2.The Correspondent,
                     Eternal Light Nursery Primary School,
                     Rayakottai Post, Denkanikottai Taluk,
                     Krishnagiri District.

                   3.Puttamma

                   4.E.V. Mariyappan

                   5.M/s. Shriram General Insurance Co. Ltd.,
                     Mookambika Complex, bearing No.2A, 2nd Floor,
                     No. Lady Desika Road, Mylapore,
                     Chennai- 600 004.                                        ..Respondents
                   (Respondents 4 & 5 are impleaded vide Court order
                    dated 17.04.2023 made in CMP No.12515 of 2020 in
                     CMA No.2808 of 2016 by AANJ)

                   Prayer: Civil Miscellaneous Appeal is filed to set aside the Judgment and
https://www.mhc.tn.gov.in/judis
                                                         1
                                                      2                    C.M.A.No.2808 of 2016

                   decree in MCOP No.391 of 2014 dated 23.02.2016 on the file of the Motor

                   Accident Claims Tribunal, (Special Sub Judge), Krishnagiri.

                                  For Appellant           : Mr. M. Krishnamoorthy

                                  For Respondent          : Mr.A. Sathish Kumar for R1
                                                          (For M/s.Mukund R. Pandian)
                                                          : Mr. C. Bhuvan Sundari for R5
                                                           *****
                                                  JUDGMENT

This appeal has been filed by the Insurance Company against the

Judgment and Decree in MCOP No.391 of 2014 dated 28.01.2016 on the

file of the Motor Accident Claims Tribunal, (Special Sub Judge),

Krishnagiri.

2. The case of the appellant is that while one Mr.Krishnan @

Krishnappa S/o. Narayanappa was driving the school Eicher bearing

Registration No.TN-24-U-8589 towards Royakottai side, he met with an

accident with the Ashok Leyland Lorry bearing Registration No.TN-29-

7535 which came from Palacode side and proceeding towards Poonapalli.

Due to the impact, the said driver of the School Vehicle ie. Krishnan @

Krishnappa sustained fatal injuries and died on the way to Hospital. In view

of the death of Krishnan @ Krishnappa, the petitioner who is the wife of

https://www.mhc.tn.gov.in/judis

deceased filed a claim petition in MCOP No.391 of 2014 before the

Tribunal seeking for compensation of Rs.25,00,000/- from the owner of the

School and insurer of the Eicher Vehicle. The Claims Tribunal after

considering available oral and documentary evidence fixed the liability on

the appellant and passed an award of Rs.13,82,000/- to the wife and mother

of the deceased who are the petitioner/1st respondent herein and third

respondent respectively. Not satisfying with the award passed by the

Tribunal, the Insurance Company has filed the present Civil Miscellaneous

Appeal to set aside the award passed by the Tribunal.

3.The learned counsel for the appellant would submit that the

Tribunal ought to have dismissed the claim petition since the said accident

occurred solely due to rash and negligent driving of the driver of the Lorry

bearing Registration No.TN-25-V7535 which dashed against the mini

school van driven by the deceased which was owned by the 1st

respondent/2nd respondent herein and duly insured with the 2nd

respondent/appellant herein.

4.It has been further submitted that the Tribunal after having held https://www.mhc.tn.gov.in/judis

that the deceased employed as driver under the owner of the Van did not

drive the school van insured with the appellant, in a rash and negligent

manner, implying particularly that the driver of the lorry TN-25-7535

coming from the opposite direction was responsible for the said accident,

ought to have dismissed the claim for non-joinder of the owner and Insurer

of the said Lorry bearing the Registration No.TN-25-7535 who are proper

and necessary parties to the proceedings.

5.The learned counsel for the appellant would further submit that the

Tribunal erred in treating the claim petition under Section 167 of M.V. Act

overlooking the fact Section 167 of M.V. Act only provides the option to

make claim either under WC Act or under MV Act and not under both Acts

and that once the claimants choose MV Act, the claim petition has to be

filed either under Section 166 or under Section 163 A of the Act. Thus, the

learned counsel for the appellant seeks this Court to set aside the order of

the Tribunal.

6.The learned counsel for the respondents 1 & 5 would jointly submit

that the Tribunal after considering the entire oral and documentary

evidence, passed the award in a proper and just manner, since the deceased https://www.mhc.tn.gov.in/judis

was working as School Van Driver under the 2nd respondent herein.

Hence, this Court need not interfere with the award passed by the Tribunal.

5. Heard, the learned counsel for the appellant and the learned

counsel for the respondents 2 and 5 and perused the material available on

record.

6.As per the order dated 17.04.2023 passed by this Court in CMP

No.12515 of 2020 in CMA No.2808 of 2016, owner and Insurer of the

Lorry were impleaded in this Appeal.

7. On a perusal of the record, it shows that both the driver of the

Lorry bearing Registration No.TN-25-7535 and driver of the School Bus

were involved in the said accident. However, without impleading the Owner

and Insurer of the Lorry as necessary parties in the claim petition, the

Tribunal has decided the case and passed the award to the petitioner/1st

respondent herein fixing the liability on the appellant/Insurance Company

who is insurer of the School Van. Even though the necessary parties have

been impleaded in this appeal, without recording their oral and documentary

evidence, the fixation of liability cannot be decided. Hence, this Court is https://www.mhc.tn.gov.in/judis

inclined to remand the matter back to the Tribunal for recording the

evidence on the side of the owner and insurer of the Lorry bearing

Registration No.TN-25-7535 after impleading them as necessary parties in

the said claim petition. Hence, the Registry is directed to send back all the

records to the Tribunal and the Tribunal is directed to take up the matter for

recording oral and documentary evidence on the side of owner and Insurer

of the Lorry bearing Registration No.TN-25-7535 and dispose of the same

within a period of four months from the date of receipt of copy of this order.

The parties concerned are permitted to adduce their evidence and mark their

reliable documents before the Tribunal to prove their side.

8. With the aforesaid directions, the Civil Miscellaneous Appeal

stands disposed of. No costs.

26.06.2023

Lbm

Index:Yes/No Internet: Yes/no Speaking/Non-speaking Order

https://www.mhc.tn.gov.in/judis

To:

1.The Motor Accident Claims Tribunal, (Special Sub Judge), Krishnagiri.

2.The Section Officer, V.R.Section, High Court, Madras.

A.A.NAKKIRAN, J.

Lbm

https://www.mhc.tn.gov.in/judis

C.M.A.No.2808 of 2016

26.06.2023

https://www.mhc.tn.gov.in/judis