Madras High Court
The National Insurance Company ... vs Shankar on 30 March, 2023
C.M.A.No.4013 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:30.03.2023
CORAM
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
C.M.A.No.4013 of 2019
and
CMP.No.22668 of 2019
The National Insurance Company Ltd.,
Branch Office-II,
Mettur Road,
Palaniyappa Complex, Erode. ... Appellant
..Vs..
1.Shankar
2.V.Vetrivel
3. The Managing Director,
Tamilnadu State Transport
Corporation Ltd.,
Periyamilguparai, Trichy. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, to set aside the judgment and decree dated 01.10.2015
made in MCOP.No.158 of 2005 on the file of the Motor Accidents Claims
Tribunal (Sub-Court) Dharmapuri.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.M.Murali Vinodh for R3
No appearance for R1 & R2
1/11
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C.M.A.No.4013 of 2019
JUDGMENT
This appeal has been filed by the appellant/Insurance Company
seeking to set aside the impugned award dated 01.10.2015 in
M.C.O.P.No.158 of 2005 passed by the Motor Accidents Claims Tribunal,
(Sub-Court) Dharmapuri.
2. The facts of the case briefly are as under:
On 26.12.2003 at about 3.45 p.m., when the first
respondent/claimant boarded in the TNSTC Bus bearing Regn.No.TN-45-N-
1766 belonging to the 3rd respondent, at Trichy, proceeding towards
Thirupuraithurai Sivan Temple, to Karur High way near Jeeyapuram Jeeyar
Mandapam, a milk van bearing Regn.No.TN-23-AB-1248 belonging to the
first respondent and insured with the 2nd respondent, came in the opposite
direction. Due to rash and negligent driving of both the drivers of the bus
and the milk van, there was an head on collusion between both the vehicles,
resulting in heavy damages to both the vehicles at their front portion. The
claimant who seated behind the driver seat of the bus, sustained multiple
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C.M.A.No.4013 of 2019
grievous injuries, admitted at Government Head Quarters Trichy as in-
patient and then he has taken treatment at Bone setting Hospital,
Nallampatty. Thereafter, the claimant seeks compensation of Rs.5,00,000/-
before the Tribunal. After trial, the claimant was awarded a sum of
Rs.2,04,000/- as compensation, fixing entire negligence on the
appellant/Insurance Company and thus directing the appellant/Insurance
company and 2nd respondent jointly and severally to deposit a sum of
Rs.2,04,000/- to the claimant as compensation. Being aggrieved over the
aforesaid award, the appellant/Insurance Company has filed the present
appeal.
3. The learned counsel for the appellant would submit that the award
of the Tribunal is contrary to law, weight of evidence and probabilities of
the case. It has wrongly erred in coming to the conclusion on the basis of
FIR. It failed to consider the fact that two vehicles had head on collusion
and the manner of accident. It has also failed to note that the driver of
Corporation of the Bus has not come into witness box to adduce evidence
on negligence aspect. It failed to note that the claimant clearly deposed
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C.M.A.No.4013 of 2019
evidence that the drivers of both the vehicle was equally responsible for the
accident. It has failed to see that in the absence of rebuttal evidence ought to
have held that the driver of both vehicles were equally responsible and
apportioned the liability equally. He further submitted that in the said
accident, number of claims arisen in which the Tribunal fixed negligence in
the ratio of 50% : 50% on the Transport Corporation and the Insurance
Company respectively. Whereas only in the instant case, the entire
negligence has been fixed on the appellant/Insurance Company instead of
fixing liability at 50%. Considering the fact that two vehicles were involved
in an opposite directions and head on collusion, evidence of claimant,
manner of accident and awards made in connected cases on negligence, the
Tribunal ought to have held that the Insurance Company is liable to pay
only 50% and the Transport Corporation is liable to pay 50%. It failed to
note that PW2 doctor has issued certificate without conducting necessary
examination and without reflecting the correct position and the same is
unsustainable in view of Judgment reported in 1999 (8) Supreme 401. It has
erred in granting Rs.1,60,000/- towards disability. It failed to note that no
material was placed to prove that the claimant had taken treatment after
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C.M.A.No.4013 of 2019
initial course of treatment. It failed to consider the period of accident and
erred in granting Rs.4000/- per 1% disability. The appellant/Insurance
Company is not entirely liable to pay compensation. Hence, he prays to
allow the appeal.
4. The learned counsel for the third respondent has submitted that the
driver of the bus has driven the vehicle in a slow and cautious manner and
he is not responsible for the accident. Hence the third respondent Transport
Corporation is not liable to pay any compensation to the claimant/first
respondent. Hence, he seeks dismissal of the appeal.
5. Heard the learned counsel for the appellant and the learned counsel
for the third respondent and perused the entire materials on record.
6. During the trial, on the side of the claimant, three witnesses were
examined as P.W.1 to P.W.3 and eight documents were marked as Ex.P.1 to
Ex.P.8. On the side of the respondents, neither witness was examined nor
document was marked.
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C.M.A.No.4013 of 2019
7. On perusal of the award, it is seen that the Tribunal has fixed the
liability on the appellant/Insurance Company and the second respondent to
pay the compensation to the claimant. The second respondent remained
exparte before the Tribunal. It is to be noted that the milk van bearing
Regn.No.TN-23-AB-1248 was not insured with the appellant at the time of
accident. The driver of the van had no driving license to drive the same at
that time of the alleged accident. Hence the said van was not used in
accordance with the provisions of Motor Vehicles Act. The appellant is not
liable to indemnify the owner of the said van for the violation of the
statutory provisions which attracts breach of the terms of the policy. The
claimant has to prove the allegation regarding the injuries, period of
treatment and the expenditures. The claimant is not permanently disabled
he is attending his duties regularly.
8. On perusal of records it is seen that the Tribunal has fixed the
entire liability on the Insurance Company and it has directed the
appellant/Insurance company to pay the compensation to claimants a sum of
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C.M.A.No.4013 of 2019
Rs. 2,04,000/- with interest and costs.
9. When the PW1/claimant has clearly deposed that the driver of both
the vehicle were equally responsible for the accident, it is wrong to held that
only the driver of the van alone responsible for the accident and fixing
entire liability on him. In the event of both the parties are liable for the
accident, the ratio of contributory negligence has to be fixed in accordance
with the law.
10. The relevant portion of the deposition of PW1 is extracted as
follows:
fle;j 26.12.2003 md;W jpUg;g[dpjdhh; rptd; nfhapYf;F
bry;y kDjhuh; 3k; vjph;kDjhuh; muR ngUe;J o.vd;.25
vd;.1766 vd;w ngUe;jpy; gazpj;J jpUr;rp-f+h; njrpa
beL";rhiy $Pag[uk; $Pah; kz;lgk; mUnf khiy 3.45
kzpf;F brd;W bfhz;oUe;jnghJ vjphpy; te;j ghy;
tz;o o.vd/23 vgp.1248 tz;oia mjd; Xl;Ldh; kw;Wk;
muR ngUe;jpd; ftdf; Fiwt[ kw;Wk; ,U Xl;Leh;fSk;
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C.M.A.No.4013 of 2019
ngUe;ija[k; ntida[k; mjpntfkhft[k;
m$hf;fpuijahft[k; Xl;o te;J neUf;F neh; nkhjp
tpgj;J Vw;gl;L mjdhy; kDjhuUf;F jiy khh;g[ kw;Wk;
cly; KGtJk; fhak; Vw;gl;L tyJfhy; vYk;g[
cile;Jtpl;lJ.
11. After considering the aforesaid facts and circumstances of the
case and on perusal of the entire records and deposition of PW1 and taking
note of the fact that the Transport Corporation not challenged 50%
negligence made against them in all the connected cases, arisen in this
accident, this court is inclined to fix liability at 50% against the Transport
Corporation and 50% against the Insurance Company. In other words, the
compensation awarded by the Tribunal is modified by changing the ratio on
the negligence aspect in which 50% of the award amount shall be borne by
the appellant/Insurance Company and the balance 50% of the award amount
shall be borne by the third respondent/Transport Corporation. Other aspects
of the award of the Tribunal shall remain the same. Since Insurance
Company has already deposited the entire compensation amount before the
Tribunal, now Transport Corporation is directed to deposit 50% of the
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C.M.A.No.4013 of 2019
amount before the Tribunal
12. In the result,
(i) This Appeal is partly allowed. Consequently, connected
miscellaneous petition is closed. There shall be no order as to costs.
(ii) The 3rd respondent /Transport Corporation, is hereby directed
to pay the 50% of award amount which works out to Rs.1,02,000/- (Rupees
One Lakh and Two Thousand only) together with interest @ 7.5% p.a. from
the date of petition till the date of deposit, to the credit of M.C.O.P.No.158
of 2005 on the file of the Motor Accident Claims Tribunal, (Sub-Judge)
Dharmapuri, within a period of six weeks from the date of receipt of copy of
the Judgment. On such deposit being made, the Tribunal is directed to
transfer the award amount along with accrued interest to the bank account
of the claimant through RTGS within a period of two weeks thereafter.
Index:Yes/No 30.03.2023
Internet:Yes/No
gv
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C.M.A.No.4013 of 2019
A.A.NAKKIRAN, J.
gv
To
1.The Section Officer
V.R.Section, High Court of Madras.
2. The Motor Accidents Claims Tribunal
(Sub-Court) Dharmapuri.
C.M.A.No.4013 of 2019
and
CMP.No.22668 of 2019
https://www.mhc.tn.gov.in/judis
C.M.A.No.4013 of 2019
30.03.2023
https://www.mhc.tn.gov.in/judis
