Madras High Court
M/S. United India Insurance ... vs Shanthi on 4 September, 2023
C.M.A. No.2320 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.09.2023
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
C.M.A. No.2320 of 2018 and
CMP No.17738 of 2018
M/s. United India Insurance Company Ltd.
Having Branch Office at
Oriental Theatre Complex
No.77, Arunachala Asari Street, Salem- 1
Having Division Office at
Divisional Office at 104-A, Perumanur Road
Perumanur, Salem-7 ... Appellant
Vs.
1. Shanthi
2. Robert Leo Charles
3. Susan Benina Tracy
4. R.Venkatesan
5. M.Lokeshkannan
6. K.R.Balaprakash ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Order 44 Rule 1 of
Civil Procedure Code, against the award and decree dated 22.06.2016 made
in M.C.O.P.No.1270 of 2013 on the file of the Motor Accidents Claims
Tribunal (Special District Court) Salem.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.S.P.Yuvaraj for R1 to R3
R4 and R6 - Notice Served,
No Appearance
Mr.S.Parthasarathy for R5
1/10
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C.M.A. No.2320 of 2018
JUDGMENT
This Civil Miscellaneous Appeal is filed against the award and
decree dated 22.06.2016 made in M.C.O.P.No.1270 of 2013 on the file of the
Motor Accidents Claims Tribunal (Special District Court) Salem.
2. The respondents 1 to 3 are the claimants. The 4th respondent is
the owner and the 5th respondent is the driver of the vehicle bearing Regn.
No.TN-30-AL-9084 (TATA Ace). The 6th respondent is the owner and the
appellant is the insurer of the two wheeler bearing Regn. No.TN-30-D-3251
(Yamaha) in which, the deceased travelled as a pillion rider.
3. The case of the claimants/respondents 1 to 3 is that on
14.04.2013 at about 10 p.m., the deceased Sam Tilson Benyamin was
travelling as a pillion rider in the Yamaha motor-cycle bearing Regn. No.TN-
30-D-3251, owned by the 6th respondent and insured with the appellant
herein. At that time, the rider of the said motor-cycle, drove it with rash and
negligent manner and at very high speed, on Kannankurichi to Hasthampatty
main road, near Chola Apartment. During which, a TATA Ace vehicle
bearing Regn. No.TN-30-AL-9084, owned by the 4th respondent driven by
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C.M.A. No.2320 of 2018
the 5th respondent, came in the opposite direction in a rash and negligent
manner at a very high speed and collided with the said motor-cycle due to
which, the deceased Sam Tilson Benyamin sustained grievous injuries and
succumbed to the injuries on spot.
4. The claimants/respondents 1 to 3 who are the mother, father
and younger sister of the deceased, filed a claim petition in M.C.O.P.No.1270
of 2013 on the file of the Motor Accidents Claims Tribunal (Special District
Court) Salem, claiming compensation of Rs.30,00,000/- for the death of the
deceased against the respondents 4 to 6 and the appellant herein.
5. The Tribunal, after hearing the arguments on either side,
and considering the materials, awarded compensation of Rs.7,57,000/- with
cost and interest at the rate of 7.5% per annum. The Tribunal, found that the
accident had occurred due to the rash and negligent driving of the riders of
both the vehicles. However, since the said TATA Ace vehicle was not having
any insurance, directed the respondents 4 and 5 who are the owner and driver
of the TATA Ace vehicle, to jointly and severally pay 50% of the
compensation and also directed the appellant/Insurance Company to pay the
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C.M.A. No.2320 of 2018
balance 50% of the compensation on behalf of the 6th respondent/owner of
the said motor-cycle, since the motor-cycle was insured with the
appellant/Insurance Company.
6. Challenging the said Award, the insurer of the motor-cycle has
filed the present appeal questioning the liability.
7. The learned counsel for the appellant/Insurance Company
submitted that though two vehicles are involved in the accident, the TATA
Ace vehicle bearing Regn. No.TN-30-AL-9084 alone is the offending
vehicle. The FIR was registered only against the driver of the said TATA Ace
vehicle and the charge sheet was also registered against the driver of the said
TATA Ace vehicle. Even the observation report also shows that the accident
was only due to the rash and negligent driving of the driver of the TATA Ace
vehicle. However, since the said TATA Ace vehicle was not insured with any
Insurance Companies, in order to get insurance claim, the claimants have
implicated the rider of the motor-cycle bearing Regn. No.TN-30-D-3251 in
which the deceased was travelling as a billion rider. But, there is no material
to show that the accident had occurred only due to rash and negligent riding
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C.M.A. No.2320 of 2018
of the rider of the motor-cycle. The rider of the motor-cycle neither involved
in the accident nor he has contributed his negligence to the accident. Since
because the offending vehicle viz., TATA Ace was not insured with any of
the Insurance companies, they subsequently implicated the motor-cycle
which is against materials. Though, P.W.2 is stated to be an eyewitness to the
occurrence, he neither gave any complaint before the Police nor he was
shown as an eyewitness in the criminal case. Only in order to get
compensation, he was introduced as an eyewitness before the Tribunal and
the Tribunal also, based on the evidence of P.W.2, fixed the liability on the
owner of motor-cycle holding that the rider of the motor-cycle has also
contributed his negligence and therefore, the appellant/Insurance Company
was directed to pay 50% of the compensation since the said motor-cycle was
insured with the appellant/insurance Company, which warrants interference.
8. The learned counsel for the respondents 1 to 3/claimants
would submit that the either of the drivers who involved in the accident, was
examined. The respondents 1 to 3/claimants are only 3rd party who are the
parents and sister of the deceased. P.W.2 in his evidence, has clearly spoken
about the manner of the accident and he has clearly stated that the drivers of
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C.M.A. No.2320 of 2018
both the vehicles, have contributed their negligence. Therefore, there is no
merit in the appeal and the appeal is liable to the dismissed.
9. Heard the learned counsel for the appellant and the learned
counsel for the respondents 1 to 3 and 5 and perused the materials available
on record.
10. The accident is not in dispute. The manner of the accident
and the liability are also not in dispute. Admittedly in this case, though the
rider of the motor-cycle survived, he has not given any company against the
driver of the TATA Ace vehicle. The pillion rider of the motor-cycle died on
the spot and the same was intimated to the police through hospital authority
and thereafter, the Investigating Officer went to the hospital and obtained the
statement from the mother of the deceased. Though FIR was registered
against the driver of the TATA Ace vehicle and after the investigation charge
sheet was also laid against the driver of the TATA Ace vehicle, it is settled
proposition of law that FIR is not an Encyclopedia. Therefore, they examined
independent witnesses including the eyewitness/P.W.2 and based on which,
the Tribunal has fixed the liability.
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C.M.A. No.2320 of 2018
11. A perusal of the records shows that even though the FIR was
registered only against driver of the TATA Ace vehicle, as already stated that
neither the rider nor the owner of the motor-cycle or any other eyewitnesses
to the accident, gave the information to the Police. The learned counsel for
the appellant/Insurance Company stated since the TATA Ace vehicle was not
having any Insurance Coverage with any of the Insurance Companies, the
rider of the motor-cycle was implicated as if, he has also contributed his
negligence. As already stated, the FIR is not an encyclopedia. The materials
before the criminal Court or Police may not be taken as it is for considering
the claim petition. The Tribunal has to decide independently with available
materials before it. In this case, the information was not given to the Police
by any of the riders of the vehicles or by any eyewitnesses. Only the 1 st
respondent/claimant/mother of the deceased, while she was in the hospital,
the Police have obtained her statement. Further, P.W.2 has stated that he had
seen the accident and the drivers of both the vehicles have contributed their
negligence. But there is no contra evidence before the Tribunal except the
FIR and Charge sheet and no independent witnesses have spoken that the
accident had occurred due to rash and negligent driving of the driver of the
TATA Ace vehicle alone. Further, the materials show that it is head on
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C.M.A. No.2320 of 2018
collision. Even assuming that the TATA Ace vehicle only came with rash and
negligence manner, if at all, the rider of the motor-cycle was cautious, he
could have avoided the accident to some extent. Since it is head on collision,
the Tribunal has held that the drivers of both the motor-cycle and the TATA
Ace vehicle have equally contributed their negligence for the accident and
there is no contra evidence to the evidence of P.W.2 except the FIR.
Therefore, this Court does not find any perversity in the appreciation of
evidence by the Tribunal. Therefore, there is no merit in the appeal and the
appeal is liable to be dismissed.
12. Accordingly, this Civil Miscellaneous Appeal is dismissed.
Consequently, connected Miscellaneous Petition is closed. No costs.
04.09.2023
ksa-2
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation Case : Yes/No
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C.M.A. No.2320 of 2018
To
1.The Motor Accidents Claims Tribunal
(Special District Court) Salem.
2.The Section Officer,
VR Section, High Court, Madras.
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C.M.A. No.2320 of 2018
P.VELMURUGAN. J.
ksa-2
C.M.A. No.2320 of 2018
04.09.2023
https://www.mhc.tn.gov.in/judis
