Madras High Court
The Branch Manager vs Ganesh Kumar on 9 August, 2024
C.M.A.(MD) No.328 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.08.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.328 of 2018
and
C.M.P.(MD) No.4448 of 2018
The Branch Manager,
United India Insurance Company Ltd.,
Jeeva Jothi Building,
Salai Road,
Dindigul - 624 001. ... Appellant
Vs.
1.Ganesh Kumar
S/o.Ashokan
2.ALT.Alagarsamy
S/o.Dharmalingam ... Respondents
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 praying to set aside the Judgment and Decree dated
22.07.2016 made in M.C.O.P.No.1457 of 2008 on the file of the Motor
Accident Claims Tribunal (I Additional Sub Court), Melur-Camp,
Madurai.
For Appellant : Mr.M.Sudharsan
for M/s.Vijayakumari Natarajan
For R1 : No appearance
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Page No. 1 of 10
C.M.A.(MD) No.328 of 2018
For R2 : Mr.C.Mayilvahana Rajendran
JUDGMENT
The instant appeal has been filed by the Insurance Company
challenging the Judgment and Decree dated 22.07.2016 passed by the
Motor Accident Claims Tribunal (I Additional Sub Court), Melur-Camp,
Madurai, in M.C.O.P.No.1457 of 2008.
2. The first respondent/injured claimant had filed a claim petition in
M.C.O.P.No.1457 of 2008 before the Tribunal stating that on 27.08.2006
at about 07.10 p.m., while he was riding his motorcycle bearing
Registration No.TN-59-Q-9085, a two-wheeler bearing Registration
No.TN-57-F-5997 owned by the second respondent and insured with the
appellant Insurance Company came in a rash and negligent manner and
dashed against the motorcycle of the first respondent, as a result of which
he fell down and sustained grievous injuries.
3. The second respondent herein, the owner of the offending
vehicle, did not file any counter affidavit before the Tribunal.
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4. The appellant Insurance Company, who was the second
respondent before the Tribunal, filed a counter stating that the rider of the
insured two-wheeler did not have a valid licence, and therefore, they are
not liable to pay the compensation; and that in any case, the accident did
not take place due to the negligence of the rider of the insured two-
wheeler.
5. Before the Tribunal, the first respondent/claimant has examined
himself as P.W.1 and the other witnesses as P.W.2 to P.W.4, including the
doctors who treated him and marked Exs.P1 to P17. On the side of the
appellant Insurance Company, two witnesses were examined as R.W.1
and R.W.2, and Exs.R1 to R7 were marked.
6. The Tribunal, after taking into consideration the oral and
documentary evidence, assessed the functional disability at 30% and
awarded a compensation of Rs.4,73,830/- by adopting the multiplier
method to the first respondent/claimant. The Tribunal also held that the
appellant Insurance Company had not established that the rider of the
insured two-wheeler did not have a valid licence and directed the
appellant Insurance Company to pay the compensation amount.
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7. The learned counsel for the appellant Insurance Company
submitted that the Tribunal has failed to consider that the owner of the
insured vehicle did not produce the licence of the rider of the insured
vehicle; and that since the burden of proof is on the second respondent
owner of the insured vehicle, the Tribunal ought to have held that the rider
of the insured vehicle did not possess a valid driving licence and ought to
have directed the appellant Insurance Company to pay and recover the
compensation amount.
8. The learned counsel for the appellant Insurance Company further
submitted that there is no evidence to establish negligence on the part of
the rider of the insured vehicle, and the first respondent/claimant has also
not established his income of Rs.6,500/- per month adopted by the
Tribunal while calculating the compensation.
9. This Court has carefully considered the rival submissions.
10. The questions involved in the instant appeal are as follows:
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i. Whether the first respondent/claimant has established
that the accident took place due to the negligence of the
rider of the insured two-wheeler?
ii. Whether the appellant Insurance Company has
established that the rider of the insured vehicle did not
have a valid licence?
iii. Whether the compensation awarded by the Tribunal is
just and reasonable?
11. As regards the first question, it is seen that the first
respondent/claimant has himself examined as P.W.1 to explain the manner
in which the accident took place. The appellant insurance company did
not examine any witnesses to establish the manner of the accident. Both
the witnesses examined by the appellant Insurance Company did not
speak about the accident and only spoke about the policy taken by the
owner of the offending vehicle. That apart, Ex.P1-FIR was lodged against
the rider of the offending vehicle. Therefore, considering all evidence, the
Tribunal found that the first respondent/claimant has established that the
accident took place only due to the negligence of the rider of the two-
wheeler insured with the appellant. Therefore, this Court finds that the
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first respondent/claimant has established that the accident took place due
to the negligence of the rider of the two-wheeler insured with the
appellant, and the first respondent/claimant has suffered injuries due to
the accident.
12. As regards the second question as to whether the appellant
Insurance Company has established that the rider of the insured vehicle
did not have a valid licence, this Court finds that Exs.R5 and R6 suggest
that the appellant Insurance Company had taken steps to ascertain
whether the rider of the insured vehicle, one Elango (since deceased), had
a valid licence. From the records and the evidence of R.W.2, it is seen
that though a requisition was sent by the appellant Insurance Company to
the RTO, Madurai, seeking information about the licence issued to the
said Elango (since deceased), the appellant Insurance Company has not
sought any information from the RTO, Melur, where the said Elango
(since deceased) was residing. That apart, though in the Motor Vehicle
Inspector's Report (Ex.P4), there is an entry which suggests that the
driving licence of the rider of the insured two-wheeler was not produced,
it does not conclusively prove that the said Elango did not have a valid
licence. Therefore, this Court is of the view that the appellant Insurance
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Company failed to establish that the rider of the insured two-wheeler
Elango did not have a valid licence. Further, the said Elango
unfortunately passed away, and therefore, it cannot be said that the owner
of the insured vehicle, i.e., the second respondent herein, failed to
discharge his burden.
13. As regards the third question on the quantum of compensation,
the doctors who treated the first respondent/claimant were examined as
P.W.3 and P.W.4. Both doctors have uniformly stated that the first
respondent/claimant has lost sight in his right eye and have assessed the
disability at 40% and 30%, respectively. Based on their evidence and the
Medical Reports, the Tribunal has rightly fixed the functional disability at
30%. The notional income fixed by the Tribunal at Rs.6,500/- per month
is just and reasonable.
14. Therefore, this Court finds that the Award of the Tribunal is
just and reasonable, and no interference is called for. Accordingly, the
Award of the Tribunal is confirmed. This Civil Miscellaneous Appeal is
liable to be dismissed.
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15. The appellant Insurance Company is directed to deposit the
compensation amount awarded by the Tribunal, together with interest and
costs, less the amount already deposited, if any, within a period of six
weeks from the date of receipt of a copy of this order.
16. On such a deposit, the first respondent/claimant is permitted to
withdraw the compensation amount together with interest and costs, less
the amount already withdrawn, if any, by filing an appropriate application
before the Tribunal.
17. In the result, this Civil Miscellaneous Appeal is dismissed. No
costs. Consequently, the connected Miscellaneous Petition is closed.
09.08.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The I Additional Sub Judge,
Motor Accident Claims Tribunal,
Melur-Camp, Madurai.
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2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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SUNDER MOHAN, J.
JEN
and
09.08.2024
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