Madras High Court
National Insurance Company Limited vs A.Ramaswamy on 21 November, 2023
Author: M.Dhandapani
Bench: M. Dhandapani
C.M.A.No.4069 of 2019
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.11.2023
CORAM :
THE HONOURABLE MR. JUSTICE M. DHANDAPANI
C.M.A.No.4069 of 2019
and
C.M.P.No.22987 of 2019
National Insurance Company Limited,
Door No.10/3/74,
Seshapuram Street,
Chittoor – 517 001. ... Appellant
Vs.
1.A.Ramaswamy
2.R.S.Mani
3.Bajaj Allianz General Insurance Company Limited,
Flat No.F-2, Ground Floor,
Door No.30, M.G.Road,
Sashtri Nagar,
Thiruvanmiyur,
Chennai – 600 041.
4.A.Srinivasulu ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated
28.03.2017 in M.C.O.P.No.35 of 2011 on the file of the Motor Accident
Claims Tribunal (V Judge, Court of Small Causes) at Chennai.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.4069 of 2019
For Appellants : Ms.R.Sree Vidhya
For Respondents : Not Ready in Notice [R1, R2 & R4]
Ms.Rathna Thara [R3]
*****
JUDGMENT
Questioning the 50% liability fixed as against the insured vehicle
of the appellant, the appellant/insurance company has preferred the
present appeal.
2. As per the claim petition, on 12.08.2009 at about 16.30 hrs, the
claimant was travelling in the Ambassador Tourist Car bearing
Regn.No.TN-09AX-6143 belonging to the first respondent, insured with
the second respondent, on his return trip from Mysore to Chennai after
finishing his work at Mysore. When the car was going near
Lakshmipuram, on National Highway towards Chennai, the driver of the
car drove the same in a rash and negligent and manner and hit against the
back of the tanker lorry bearing Regn.No.TN-23-J-0486, which was
owned by the third respondent and insured with the fourth respondent,
which was watering the saplings planted on the centre median. Due to the
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accident, the petitioner suffered grievous injuries. Therefore, the claimant
had filed a claim petition before the Tribunal claiming a compensation of
Rs.7,00,000/-, which was restricted to Rs.5,00,000/- for the injuries
sustained by him in the road accident.
3. Before the Tribunal, the claimant examined himself as P.W.1
and examined the doctor as P.W.2 and marked 11 documents viz., Ex.P.1
to Ex.P.11. On the side of the respondents, they have examined one
witness as R.W.1 and marked 1 document viz., Ex.R.1. The Tribunal, on
considering the oral and documentary evidence, awarded a sum of
Rs.3,63,200/- holding that the respondents 1 and 3 being the owners and
the respondents 2 and 4 being the insurance companies for the car and
the tanker lorry, are jointly and severally liable to pay the compensation
to the claimant. Aggrieved by the same, the insurance company of the
tanker lorry has preferred the present appeal.
4. The learned counsel appearing for the appellant submitted that,
after investigation of the accident, the law enforcing agency had charge-
sheeted the driver of the car, which is evident from Ex.R.1/final report,
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however, the Tribunal has fastened the liability of 50% on the tanker
lorry insured with the appellant, which is wholly unsustainable. Further,
she submitted that, though the third respondent/insurer of the car had
claimed that the contributory negligence should be fastened on the tanker
lorry, however, no evidence has been placed before the Tribunal to prove
the same. In such circumstance, instead of fastening the entire liability as
against the third respondent/insurer of the car, fastening 50% liability as
against the owner and insurer of the car and 50% liabilty as against the
owner and insurer of the lorry is not sustainable. The Tribunal ought to
have fastened the entire liability as against the third respondent/insurer of
the car. Accordingly, he prays for allowing the appeal.
5. Per contra, the learned counsel appearing for the third
respondent/insurer of the car submitted that, without any barricade, the
tanker lorry was watering the samplings planted in the centre median and
the driver of the car was not able to identify whether the tanker lorry was
stopped or moving on the road, thereby, the accident had happened. In
view of the same, the Tribunal has rightly fastened 50% negligence on
the part of the car, which does not require any interference. Accordingly,
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he prays for dismissal of this appeal.
6. Heard the learned counsel appearing for the appellant as well as
the third respondent and also perused the materials available on record.
7. The factum and manner of the accident is not in dispute. The
compensation awarded by the Tribunal under various heads were not
assailed by the appellant/insurer of the tanker lorry. Therefore, this Court
confirms the compensation awarded by the Tribunal under various heads.
8. The appellant had challenged the liability fastened against them.
Admittedly, the third respondent issued a package policy in favour of the
second respondent and as per the package policy, the owner of the car is
entitled to claim compensation for his own damages. In the present case,
FIR was registered as against the driver of the car and the said fact was
also admitted by the claimant in his claim petition. P.W.1/claimant in the
claim petition stated that the driver of the car by driving the vehicle in a
rash and negligent manner and without noticing that the tanker lorry,
which was watering the samplings planted in the centre median, was
moving in front of the car, had dashed against the said tanker lorry and
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the said accident was happened in a broad day light. For disproving the
negligence on the part of the driver of the car, they have not taken any
effective steps to adduce evidence before the Tribunal. No eye-witness
was examined before the Tribunal. From the above, it is evident that the
accident had happened due to the negligence of the driver of the car,
however, the Tribunal has erroneously fastened 50% liability on the
appellant, which is wholly unsustainable and the same is liable to be set
aside. Therefore, the 50% liability fixed on the part of the fourth
respondent and the appellant herein is set aside and the respondents 2
and 3 are jointly and severally liable to compensate the claimant.
9. Accordingly, the Civil Miscellaneous Appeal is allowed and the
impugned Award of the Tribunal is modified, setting aside the 50%
liability fixed on the fourth respondent and appellant herein. The
respondents 2 and 3 are jointly and severally directed to deposit the
entire award amount as awarded by the Tribunal to the credit of
M.C.O.P.No.35 of 2011 along with interest at the rate of 7.5% per annum
from the date of claim petition till the date of deposit and costs as
awarded by the Tribunal, less, the amount, if any already deposited,
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within a period of eight (8) weeks from the date of receipt of a copy of
this judgment. On such deposit being made, the Tribunal is directed to
transfer the said amount directly to the bank account of the first
respondent/claimant through RTGS within a period of two (2) weeks
thereafter. If any amount deposited by the appellant before the Tribunal,
the appellant is permitted to withdraw the same by making appropriate
application before the Tribunal. No costs. Consequently, the connected
miscellaneous petition is closed.
21.11.2023
Index : Yes / No
Speaking order / Non-speaking order
Neutral Citation Case : Yes / No
sp
To
1.The Motor Accident Claims Tribunal (V Judge, Court of Small Causes)
at Chennai.
2.The Section Officer, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
M.DHANDAPANI, J.
sp
21.11.2023
https://www.mhc.tn.gov.in/judis
