Madras High Court
The National Insurance Company ... vs A.Rahoop Khan (Died) on 23 March, 2023
C.M.A.(MD).No.1159 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1159 of 2016
The National Insurance Company Ltd.,
Through its Divisional Manager,
No.3, North Veli Street,
Madurai – 625 001. ..... Appellant/ Respondent No.4
-vs-
1. A.Rahoop Khan (died) .... Respondent No.1/Petitioner
2. A.Ramasamy .... Respondent No.2/ Respondent No.1
3. K.S.Sivakumar .... Respondent No.3/ Respondent No.2
4. The Divisional Manager
New India Assurance Company Ltd.,
248 B, Kamarajar Salai,
Madurai. ... Respondent No.4/ Respondent No.3
5. Tajnisha Begam
6. Arsath Mohamed
7. Mahathir Mohamed Aazath
8. Aabitha Begam .... Respondents
(Minor R6 and R7 are represented through
Mother Tajnisha Begam)
(Respondents 5 to 8 are brought on record as
Legal heirs of the deceased R1 vide order of this
Court dated 15.02.2021 in C.M.P(MD) Nos.2197 to 2199/2019
in C.M.A(MD) No.1159 of 2016)
1/10
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.1159 of 2016
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.1472 of
2014, dated 15.10.2015, on the file of the Special Sub Court, (Motor
Accidents Claims Tribunal), Madurai.
For Appellant : Mr.D.Sivaraman
For Respondents : No appearance – For R2 and R3
: Mr.J.S.Murali – for R4
: Mr.S.M.Mohan Gandhi
For R5 to R8
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the Insurance
Company challenging the Award of the Motor Accidents Claims Tribunal
primarily on the ground that the vehicle insured with them was not involved
in the accident.
2. The injured claimant was a pillion rider in TVS XL and according to
the claimant, he was dashed against by a Yamaha Bike which is owned by the
first respondent and insured with the fourth respondent. The claimant had
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C.M.A.(MD).No.1159 of 2016
contended that the accident had happened only due to a rash and negligent
driving of the vehicle belonging to the first respondent.
3. The fourth respondent Insurance Company had filed a counter
disputing the involvement of the vehicle and contending that an FIR was
registered belatedly, on 10.11.2008. They have further contended that the first
respondent had lodged a complaint before the police under Ex.R4, contending
that the vehicle was not at all involved in the said accident.
4. The Tribunal, after considering the oral and documentary evidence,
arrived at a finding that the vehicle belonging to the first respondent was
involved in the accident and the said accident has happened only due to the
rash and negligent driving of the driver of the first respondent vehicle. The
Tribunal further found that the injured claimant was entitled to compensation
of a sum of Rs.2,10,000/- (Rupees Two Lakhs and Ten Thousand only) on the
ground that he has suffered the permanent partial disability at 30%. This
Award is under challenge in the present appeal.
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C.M.A.(MD).No.1159 of 2016
5. The learned counsel appearing for the appellant/Insurance Company
had contended that the alleged accident is said to have taken place at about
06.30 p.m, on 09.11.2008. However, the FIR has been registered only on the
next day. He further pointed out that neither of the vehicles involved in the
accident have been referred to the Motor Vehicle Inspector for submitting a
report. Unless the Motor Vehicle Inspector's Report is placed before the
Court, the damages incurred to the vehicle could not be assessed so as to
point out the involvement of the vehicle. He further contended that the owner
of the offending vehicle is arrayed as the first respondent, he was examined as
RW-2. As per the deposition, the vehicle was not at all involved in the said
accident. He further contended that except the injured witness no other
eyewitness have been examined to prove the accident or to prove the
involvement of the offending vehicle in the said accident. Therefore, he
prayed for exonerating the fourth respondent/Appellant Insurance Company
from the liability.
6. Per contra, the learned counsel appearing for the claimant had
contended that the accident had taken place at about 06.30 p.m, on
09.11.2008 and immediately, the injured claimant was admitted to the Sree
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C.M.A.(MD).No.1159 of 2016
Kumaran Hospital near new bus stand, Tiruppur and thereafter, he was
discharged only on 14.11.2008. The FIR was registered as per the instructions
sent to the Police who reached the hospital only after receiving instructions
from the said hospital. Therefore, any delay in registration of FIR cannot be
attributed in the injured claimant and for the said ground, the involvement of
the vehicle cannot be doubted.
7. The learned counsel appearing for the respondent further contended
that even at the time of registration of the FIR, the vehicle number belonging
to the first respondent has been mentioned. He further contended that though
the owner of the offending vehicle is arrayed as the first respondent and he
was examined as RW.2, the evidence cannot be taken in to consideration in
view of the fact that though he was a party arrayed as the first respondent in
the claim petition, but he has not chosen to file a counter. Therefore, he
prayed for sustaining the award passed by the Tribunal as against the
appellant Insurance Company.
8. I have carefully considered the submissions made by the learned
counsel on either side and perused the material on records.
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C.M.A.(MD).No.1159 of 2016
9. The present appeal has been filed primarily on the allegation that the
offending vehicle is not at all involved in the said accident. According to the
claimant, the accident had taken place at about 06.30 p.m, on 09.11.2008.
Ex.P2 is the discharge summary issued by Sree Kumaran Hospital. It is
clearly established that the injured claimant was admitted to the said hospital
on 09.11.2008 alleging that the accident has taken place at around 06.30 p.m.
Even in the said discharge summary, it has been referred to another two
wheeler which was involved in the said accident. The injured claimant was
discharged only on 14.11.2008. A perusal of the FIR indicates that the said
FIR has been registered at about 02.45 hours on 10.11.2008. The type of
information in cloumn No.4 has been mentioned as oral information. Even in
the said FIR, the Head Constable has recorded that he had received
information from Thiruppur, Sri Kumaran Hospital and thereafter, he has
visited the hospital and recorded the statement of the injured claimant and he
has registered the FIR.
10. A combined reading of the discharge summary under Ex.P.2 and the
Ex.P.1- FIR clearly establishes that the offending vehicle belonging to the
first respondent and insured with the second respondent was involved in the
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C.M.A.(MD).No.1159 of 2016
accident and it has been referred to in the FIR which was registered at the
earliest point of time. Therefore, this Court does not find any illegality or
infirmity in the award of the Tribunal in fixing the involvement of the vehicle.
11. As far as the plea of the negligence on the part of the injured
claimant is concerned he was only a pillion rider in the TVS-XL and though
the driver of the offending vehicle has been examined as R.W.2, nothing has
been brought forward. The entire case was about the non-involvement of the
vehicle and he has not come forward to depose anything about the negligence
of the vehicle, in which the injured claimant had travelled. Therefore, there
cannot be any illegality on the part of the Tribunal in arriving at a conclusion
the accident has happened due to the rash and negligent driving on the part of
the offending vehicle owned by the first respondent herein.
12. As far as the quantum of compensation is concerned, the injured
claimant is a Tailor and his monthly income is Rs.8,000/- (Rupees Eight
Thousand only). The Tribunal has taken the monthly income at Rs.3,000/-
(Rupees Three Thousand only) and has proceeded to grant a total
compensation of Rs.2,10,000/- (Rupees Two Lakhs and Ten Thousand only)
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C.M.A.(MD).No.1159 of 2016
under the different heads. Therefore, considering the fact that the grant of
compensation is very reasonable, this Court is not inclined to interfere with
the quantum of compensation. Therefore, there is no merit in the appeal, and
this Civil Miscellaneous Appeal is dismissed.
13. During the pendency of the appeal, the injured claimant has passed
away. Therefore, the legal heirs of the injured claimant have been impleaded
as respondents 5 to 8. Respondent No.5, who is the wife of the deceased
claimant shall be entitled to a sum of Rs.1,00,000/- (Rupees One Lakh only)
Respondents 6 and 7 would be equally entitled to a sum of Rs.50,000/-
(Rupees Fifty Thousand only) each. Respondent No.8 would be entitled to a
sum of Rs.10,000/- (Rupees Ten Thousand only). The claim shall be
apportioned in the above said manner along with accrued interest and the
same shall be disbursed to the adult claimants. There shall be no order as to
costs.
23.03.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.1159 of 2016
To
1. The Special Sub Court,
(Motor Accidents Claims Tribunal),
Madurai.
2. The Divisional Manager
New India Assurance Company Ltd.,
248 B, Kamarajar Salai,
Madurai.
3. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.1159 of 2016
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.1159 of 2016
23.03.2023
https://www.mhc.tn.gov.in/judis
