Madras High Court
Thangamani vs Anandakumar on 30 November, 2023
Author: M.Dhandapani
Bench: M.Dhandapani
C.M.A.No.822 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.11.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.M.A.No.822 of 2020
1.Thangamani
2.Periyasamy ... Appellants
Vs.
1.Anandakumar
2.The New India Assurance Co. Ltd.,
4/2-1, Rasipuram Main Road,
Vennandur,
Namakkal District – 637 505.
Divisional Office at No.29,
Paramathi Road,
Namakkal. ... Respondents
Prayer:
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, to set aside the award amount in the judgment and
decree dated 01.04.2019 made in M.A.C.T.O.P.No.242 of 2017 on the
file of the Motor Accidents Claims Tribunal / Additional District Judge,
Namakkal.
For Appellants : Mr.T.S.Arthanareeswaran
For Respondents : R1 – No Appearance
Mr.J.Chandran for R2
1/11
https://www.mhc.tn.gov.in/judis
C.M.A.No.822 of 2020
JUDGMENT
This appeal has been filed by the appellants/ claimants
challenging the judgment and decree passed in M.C.O.P.No.242 of
2017 dated 01.04.2019 on the file of the Motor Accidents Claims
Tribunal / Additional District Judge, Namakkal.
2.The brief facts of the case is that on 08.05.2016 at about
06.40 p.m., the deceased Sanjeev Kumar was travelling in a Hero
Honda Splendor Plus bearing Registration No.TN-28 AX-0406 as a
pillion rider in Tiruchengode to Salem Main Road, near Karumapuram
Pirivu Road, Morepalayam. At that time the rider of the motorcycle,
drove the vehicle in a rash and negligent manner and dashed against
the unknown motorcycle going in front of the vehicle, due to which,
the said Sanjeev Kumar sustained grievous injuries and was
immediately taken to Surya Multi Speciality Hospital, Tiruchengode,
where the deceased was given first aid and thereafter he was admitted
in Vijaya Hospital, Erode, however, he died on 21.05.2016.
3.Thereafter, the parents of the deceased Sanjeev Kumar/
appellants/ claimants filed claim petition before the Motor Accidents
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Claims Tribunal, claiming a sum of Rs.25 Lakhs as compensation for
the death of their son. After adjudication, the Tribunal rejected the
claim petition. Aggrieved by the same, the appellants claimants have
filed this appeal.
4.The learned counsel appearing for the appellants submitted
that the deceased was 11 years at the time of death. The learned
counsel further submitted that in the Hospital, the law enforcing
agency obtained statement from P.W.1/ second appellant and
registered F.I.R. and based on the F.I.R., the law enforcing agency
inadvertently registered criminal case as against the un-known
motorcycle. On the sole ground, the claim petition was rejected.
5.The learned counsel appearing for the appellants further
submitted that inorder to prove the negligence aspect, P.W.2 eye
witness was examined and he clearly deposed that due to the sudden
brake applied by the rider of the motorcycle in which the deceased
travelled as a pillion rider, the accident happened and no contra
evidence was let in either by the owner of the vehicle or by the
Insurance Company, however, the Tribunal rejected the claim petition.
https://www.mhc.tn.gov.in/judis
6.The learned counsel appearing for the appellants further
submitted that if the evidence recorded before the Tribunal is contrary
to the contents of the F.I.R., the evidence recorded before the Tribunal
has to be given weightage. In the present case, the evidence let in by
P.W.2 was ignored by the Tribunal and the statement in the F.I.R. was
taken into consideration, which is not sustainable one. The learned
counsel further submitted that F.I.R. was registered by the law
enforcing agency based on the information furnished by P.W.1, who is
not an eye witness to the occurrence. In support of his contentions,
the learned counsel relied upon the decision of the Hon'ble Apex Court
reported in CDJ 2021 SC 739 [National Insurance Company Ltd.
Vs. Chamundeswari and Others].
7.Per contra, the learned counsel appearing for the second
respondent Insurance Company submitted that as per the F.I.R., un-
known vehicle was involved in the accident. Hence, without filing claim
petition as against the owner of the un-known vehicle and its insurer
and filing claim petition as against the owner of the motorcycle in
which the deceased travelled as a pillion rider and its insurer is not
sustainable.
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8.The learned counsel appearing for the second respondent
Insurance Company further submitted that in the F.I.R., P.W.1 has
clearly stated that the un-known vehicle took right side and turned left
side, thereby, the rider of the motorcycle applied sudden brake and
thereby the accident happened, however, P.W.2 has deposed that due
to the sudden brake applied by the rider of the motorcycle in which the
deceased travelled as a pillion rider, the accident happened and the
same is contrary to F.I.R. and charge sheet filed by the law enforcing
agency. Hence, the Tribunal rightly rejected the claim petition.
9.Heard the learned counsel appearing for the appellant as well
as the learned counsel appearing for the second respondent and
perused the materials available on record.
10.Admittedly, F.I.R. was registered based on the complaint
given by P.W.1. It is equally un-disputed fact that P.W.1 is not an eye
witness and the eye witness was examined as P.W.2. P.W.2 makes it
clear that due to the sudden brake applied by the rider of the
motorcycle in which the deceased travelled as a pillion rider, the
accident happened.
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11.It is relevant to extract hereunder the relevant portion of the
decision of the Hon'ble Apex Court reported in CDJ 2021 SC 739
[National Insurance Company Ltd. Vs. Chamundeswari and
Others]:
“8. It is clear from the evidence on record of
PW–1 as well as PW–3 that the Eicher van
which was going in front of the car, has taken a
sudden right turn without giving any signal or
indicator. The evidence of PW–1 & PW–3 is
categorical and in absence of any rebuttal
evidence by examining the driver of Eicher van,
the High Court has rightly held that the
accident occurred only due to the negligence of
the driver of Eicher van. It is to be noted that
PW–1 herself travelled in the very car and PW–
3, who has given statement before the police,
was examined as eye–witness. In view of such
evidence on record, there is no reason to give
weightage to the contents of the First
Information Report. If any evidence before the
Tribunal runs contrary to the contents in the
First Information Report, the evidence which is
recorded before the Tribunal has to be given
weightage over the contents of the First
Information Report. In the judgment, relied on
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by the appellant’s counsel in the case of
Oriental Insurance Company Limited v.
Premlata Shukla and Others1, this Court has
held that proof of rashness and negligence on
the part of the driver of the vehicle, is
therefore, sine qua non for maintaining an
application under Section 166 of the Act. In the
said judgment, it is held that the factum of an
accident could also be proved from the First
Information Report. In the judgment in the
case of Nishan Singh and Others v. Oriental
Insurance Company Limited2, this Court has
held, on facts, that the car of the appellant
therein, which crashed into truck which was
proceeding in front of the same, was driven
negligently by not maintaining sufficient
distance as contemplated under Road
Regulations, framed under Motor Vehicles Act,
1988. Whether driver of the vehicle was
negligent or not, there cannot be any
straitjacket formula. Each case is judged
having regard to facts of the case and evidence
on record. Having regard to evidence in the
present case on hand, we are of the view that
both the judgments relied on by the learned
counsel for the appellant, would not render any
assistance in support of his case.”
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12.Perusal of the decision cited supra makes it clear that if any
evidence runs contrary to the contents of the F.I.R., then the evidence
recorded before the Tribunal has to be given weightage. However, in
the present case, contrary to the decision of the Hon'ble Apex Court,
the Tribunal arrived at the conclusion based on the contents of the
F.I.R. and charge sheet and rejected the claim petition, which is not
sustainable one.
13.This Court fix 100% negligence on the part of the rider of the
motorcycle owned by the first respondent and insured with the second
respondent.
14.Perusal of records reveal that the policy is a package policy
and hence the pillion rider is entitled to claim compensation. Hence,
the appellants/ parents of the deceased pillion rider are entitled for
compensation. Respondents 1 and 2 are jointly and severally liable to
pay the compensation to the appellants claimants.
15.This Court thinks it fit that a sum of Rs.5 Lakhs would be a
just and reasonable compensation for the death of the 11 year old
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deceased. Ex.P6 – medical bills reveal that the appellants have spent
a sum of Rs.2,33,515.47. Hence, this Court awards a sum of
Rs.2,33,516/- (Rs.2,33,515.47 rounded off to Rs.2,33,516/-) along
with a sum of Rs.5 Lakhs as compensation to the appellants. The
appellants are entitled to a sum of Rs.7,33,516/- as compensation
along with interest at the rate of 7.5% p.a. from the date of claim
petition till the date of deposit.
16.The second respondent Insurance Company is directed to
deposit the compensation amount along with interest at the rate of
7.5% p.a. from the date of claim petition till the date of deposit, before
the Motor Accidents Claims Tribunal / Additional District Judge,
Namakkal, within a period of four weeks from the date of receipt of a
copy of this judgment. On such deposit being made, the appellants/
claimants are permitted to withdraw the entire award amount in equal
share, on making proper and necessary application before the Tribunal.
17.The appellants/ claimants shall not be entitled to any interest
for the period of delay, if any, in filing the appeal. The appellants/
claimants are directed to pay the requisite Court fee for the
compensation amount, if required. The Motor Accidents Claims
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Tribunal / Additional District Judge, Namakkal, shall disburse the
compensation amount upon production of certified copy showing proof
of payment of Court fee by the appellants/ claimants.
18.The civil miscellaneous appeal is allowed. The judgment and
decree passed in M.C.O.P.No.242 of 2017 dated 01.04.2019 by the
Motor Accidents Claims Tribunal / Additional District Judge, Namakkal,
is set aside. No costs.
30.11.2023
pri
Index: Yes/ No
Speaking Order: Yes/ No
NCC: Yes/ No
To
1.The Motor Accidents Claims Tribunal /
Additional District Judge, Namakkal.
https://www.mhc.tn.gov.in/judis
M.DHANDAPANI,J.
pri
30.11.2023
https://www.mhc.tn.gov.in/judis
