Madras High Court
Bharati Axa General Insurance ... vs Velmurugan on 8 September, 2023
CMA Nos. 903 & 914 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Civil Miscellaneous Appeal Nos. 903 & 914 of 2022
and
C.M.P. Nos. 6689 & 6792 of 2022
C.M.A. No. 903 of 2022:
Bharati AXA General Insurance Company Ltd.,
Fairlands Divya Trade Centre, 1st Floor,
11th Brindavan Road, Fairlands,
Salem – 636 016. ... Appellant
Versus
1. Velmurugan
2. Durairaj ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree dated
01.10.2019 made in M.C.O.P. No. 362 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court No. 1, Salem.
For Appellant : Mr. K.Poomalai
For Respondents : Mr. MA.P.Thangavel for R1
R2 - exparte
https://www.mhc.tn.gov.in/judis
CMA Nos. 903 & 914 of 2022
C.M.A. No. 914 of 2022:
Bharati AXA General Insurance Company Ltd.,
Fairlands Divya Trade Centre, 1st Floor,
11th Brindavan Road, Fairlands,
Salem – 636 016. ... Appellant
Versus
1. Thulasimani
2. Durairaj ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the Judgment and Decree dated
01.10.2019 made in M.C.O.P. No. 363 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court No. 1, Salem.
For Appellant : Mr. K.Poomalai
For Respondents : Mr. MA.P.Thangavel for R1
R2 - exparte
COMMON JUDGMENT
The appellant has filed the instant appeals challenging the common
award passed by the Tribunal in M.C.O.P. Nos. 362 and 363 of 2017
dated 01.10.2019.
https://www.mhc.tn.gov.in/judis
CMA Nos. 903 & 914 of 2022
2.The first respondent in both the appeals had filed claim petitions
seeking compensation stating that on 24.12.2016, the first respondent in
C.M.A. No. 903 of 2022 rode the two wheeler bearing Registration No.
TN 30 L 5656 along with the first respondent in C.M.A. No. 914 of
2022, who was traveling as a pillion rider in Kanthampatti Child Hospital
Service Road in Bangalore Bypass Road from South to North, a car
bearing Registration No. TN 30 AJ 1500 belonging to the second
respondent driven by its driver in a rash and negligent manner dashed the
two wheeler, as a result of which, the first respondent in both the appeals
suffered severe injuries.
3.The second respondent in both the appeals remained exparte
before the Tribunal.
4.The appellant in both the appeals filed counter denying all the
averments in the claim petitions stating that the accident occurred due to
the negligence of the first respondent in C.M.A. No. 903 of 2022, who
was the rider of the two wheeler; that the first respondent in C.M.A. No.
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CMA Nos. 903 & 914 of 2022
903 of 2022 had suddenly crossed the service road to go to National
Highway without noticing the car; that the claim petitions are bad for
nonjoinder of necessary parties; and that in any case, the compensation
claimed was excessive and prayed for dismissal of the claim petitions.
5.On the side of the first respondent in both the appeals, PW1 and
PW2 has been examined and Ex.P.1 to Ex.P.15 have been marked. The
appellant examined three witness on its side as RW1 to RW3 and marked
Ex.R.1. Further, Ex.C.1 to Ex.C.4, Ex.W.1 and Ex.W.2 have been
marked.
6.The Tribunal after considering the oral and documentary
evidence found that the accident occurred due to the rash and negligent
driving of the driver of the car and awarded a sum of Rs. 2,98,488/- to
the first respondent in C.M.A. No. 903 of 2022 and a sum of
Rs. 1,62,610/- to the first respondent in C.M.A. No. 914 of 2022 towards
compensation to be paid by the appellant. Aggrieved by the said award,
these instant appeals have been filed.
7.The learned counsel for the appellant submitted that the Tribunal
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CMA Nos. 903 & 914 of 2022
had erroneously fixed the entire negligence on the driver of the offending
vehicle insured with the appellant although the appellant had examined
I.O. to show that the driver of the offending vehicle was not guilty of
negligence and the I.O. had closed the case as mistake of fact. The
learned counsel further submitted that in any case, the Tribunal ought to
have fixed contributory negligence on the deceased and hence, prayed for
reduction of the compensation amount.
8.The learned counsel for the first respondent in both the appeals,
per contra, submitted that the Tribunal after taking into consideration the
evidence adduced before it had correctly came to the conclusion that
there is no basis to hold that the rider of the two wheeler has contributed
to the accident. The learned counsel further submitted that the Tribunal
had also noted the fact that the driver of the car insured with the
appellant had not been examined and hence, prayed for dismissal of the
appeals.
9.The only question involved in the instant appeal is whether the
Tribunal was right in fixing the entire negligence on the driver of the
offending vehicle insured with the appellant.
https://www.mhc.tn.gov.in/judis
CMA Nos. 903 & 914 of 2022
10.The learned counsel for the appellant was unable to point out
any infirmity in the quantum of compensation awarded by the Tribunal.
As regards the negligence, it is seen that the driver of the offending
vehicle was not examined before the Tribunal. The learned counsel for
the appellant relied upon the evidence of I.O. and the final report which
is said to have been prepared by him. This Court is of the view that
cannot be the basis to hold that the deceased also contributed to the
accident. The appellant had not examined the driver or any other eye-
witness to the occurrence to dispute the evidence let in on the side of the
first respondent in both the appeals. In such circumstances, the finding of
the Tribunal holding that the driver of the offending vehicle is guilty of
negligence cannot be faulted. Since there is no challenge to the quantum
of compensation, no interference is called for.
11.In the result, these appeals are dismissed and the compensation
awarded by the Tribunal at Rs. 2,98,488/- to the first respondent in
C.M.A. No. 903 of 2022 and at Rs. 1,62,610/- to the first respondent in
C.M.A. No. 914 of 2022 is confirmed. The appellant is directed to
deposit the amounts determined by the Tribunal together with interest at
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CMA Nos. 903 & 914 of 2022
7.5% per annum (excluding the default period if any) from the date of
petition till the date of deposit within a period of six (6) weeks from the
date of a receipt of copy of this Judgment. On such deposit, the first
respondent is both the appeals are permitted to withdraw their respective
award amounts along with proportionate interest and costs, less the
amount if any, already withdrawn. Consequently, the connected
miscellaneous petitions are closed. No costs.
08.09.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
1. The Motor Accidents Claims Tribunal,
Special Sub Court No. 1,
Salem.
2. The Section Officer,
VR Section,
Madras High Court,
Chennai – 600 104.
https://www.mhc.tn.gov.in/judis
CMA Nos. 903 & 914 of 2022
SUNDER MOHAN, J
ay
C.M.A. Nos. Nos. 903 & 914 of 2022
and
C.M.P. Nos. 6689 & 6792 of 2022
Dated: 08.09.2023
https://www.mhc.tn.gov.in/judis
