Madras High Court
The National Insurance Company Limited vs S.Amutha on 13 August, 2024
Author: R.Hemalatha
Bench: R. Hemalatha
CMA.No.2407 of 2023
and C.M.P.No.22609 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.08.2024
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.M.A.No.2407 of 2023
and
C.M.P.No.22609 of 2023
The National Insurance Company Limited,
Motor Third Party, T.P.Cell,
No.46, Moore Street, III Floor,
Chennai - 600 001. ... Appellant
vs.
1. S.Amutha
2.S.Maduri (Minor)
3.S.Yamini (Minor)
4.R.Elizebeth
5.M/s.R.V. Constructions,
No.14, Kulanthaiammal Nagar,
1st Street, 2nd Floor, Pudukottai Road,
Thanjavur - 613 005. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988 against the decree and judgment dated
04.07.2023 in M.C.O.P.No.2259 of 2018 on the file of the Motor
1/8
https://www.mhc.tn.gov.in/judis
CMA.No.2407 of 2023
and C.M.P.No.22609 of 2023
Accidents Claims Tribunal (Special Sub Court No.I / Small Causes
Court), Chennai.
For Appellant : Mr.D.Bhaskaran
For RR1 to 4 : Mr.K.Varadha Kamaraj
JUDGMENT
The appellant, the National Insurance Company Limited is the
second respondent in M.C.O.P.No.2259 of 2018 on the file of the Motor
Accidents Claims Tribunal (Special Sub Court No.I / Small Causes
Court), Chennai, and they have filed the present appeal questioning the
quantum of compensation awarded by the Tribunal.
2. The respondents 1 to 4 / claimants filed the claim petition
under Section 166 of the Motor Vehicles Act seeking compensation of
Rs.2,00,00,000/- for the death of one Sureshkumar, (the husband of the
first respondent, father of the respondents 2 and 3 and son of the fourth
respondent) in a road accident that took place on 26.01.2018.
3. The brief case of the claimants is as follows :
On 26.01.2018 Suresh Kumar (deceased) was driving a
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Mahindra van bearing Registration Number TN-12-M-7520 on Chennai -
Trichy NH 45. Near Siruvachur, Perambalur District. A lorry bearing
Registration Number TN-49-BC-5734 belonging to the fifth respondent
and insured with the appellant was going ahead of the Mahindra van when
the driver of the lorry applied sudden brake causing collision.
Sureshkumar sustained injuries and died on the spot.
4. According to the claimants, the rash and negligent driving of
the driver of the lorry was the cause of the accident and that since the
owner of the lorry had insured his vehicle with the appellant, the National
Insurance Company Limited, the owner and the insurer of the lorry are
jointly and severally liable to pay compensation.
5. The owner of the lorry, fifth respondent remained absent and
was set ex parte in the Tribunal. The appellant, the National Insurance
Company Limited, resisted the claim petition on all the grounds available
to the insurer under Section 170 of the Motor Vehicles Act.
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6.The Tribunal after analysing the evidence on record fixed the
negligence on the part of the driver of the Mahindra van (deceased) and
driver of the lorry in the ratio 20:80 respectively. Aggrieved over the
same, the present appeal is filed.
7. Heard Mr.D.Bhaskaran, learned counsel appearing for the
appellant and Mr.K.Varadha Kamaraj, learned counsel appearing for the
respondents 1 to 4.
8. Mr.D.Bhaskaran, learned counsel appearing for the appellant
contended that the driver of the Mahindra van was the wrong doer as far
as the present case is concerned and FIR (Ex.P1) was also registered
against him. The police after conducting investigation filed a referred
charge sheet treating the case as abated since the driver of the Mahindra
van had died. However, the Tribunal did not take these aspects into
consideration and fixed the negligence on the part of the owner and
insurer of the lorry as 80%. He therefore prayed for setting aside the
Award passed by the Tribunal.
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9. Per contra Mr.K.Varadha Kamaraj, learned counsel appearing
for the respondents 1 to 4 contended that the Tribunal had passed a well
reasoned order and therefore, there is no reason for this Court to interfere
with the same.
10. A perusal of the records shows that the lorry bearing
Registration Number TN-49-BC-5734 was going ahead of the Mahindra
van bearing Registration Number TN-12-M-7520. The accident spot is
was on the NH 45 from Chennai - Trichy. According to the claimants, the
driver of the lorry applied sudden brake, as a result of which, the
Mahindra van rear ended the lorry.
11. Normally, maintenance of minimum distance between two
vehicles is mandatory to prevent any mishap. In the instant case, the
police had registered FIR (Ex.P1) only against the driver of the Mahindra
van and also filed a referred charge sheet against him. It is true that the
FIR (Ex.P1) and the final report cannot be a decisive factor to conclude
that a particular driver of a vehicle was the wrong doer as far as the Motor
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Accidents Claims are concerned. A perusal of the FIR shows that one of
the passengers of the Mahindra van had lodged a complaint with the
police stating that the driver of the Mahindra van drove his vehicle in a
rash and negligent manner. The claimants had examined the eyewitness to
the occurrence, P.W.2. P.W.2 in his evidence had stated that the driver of
the lorry was the tortfeasor. The person who lodged the FIR was not
examined by both the parties. Looking at the circumstances of the
accident it is clear that both the vehicles are more or less equally
negligent. The conclusion of the Tribunal that the major liability was on
the lorry which had applied brakes suddenly causing the van following it
collide with its from behind. This is not acceptable. Such a minimum
distance between both the vehicles could have averted the mishap.
Therefore, this Court concludes that the liability ratio decided by the
Tribunal is erroneous and needs a correction. Therefore, it is concluded
that the ratio of liability of lorry and the van is 60:40.
12. In the result,
i. the Civil Miscellaneous Appeal is partly allowed. No costs.
Consequently, connected Civil Miscellaneous Petition is closed.
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ii. contributory negligence on the part of the driver of the lorry is fixed
as 60% and driver of the Mahindra van (deceased) as 40%.
13.08.2024
Index : Yes/No
Speaking/Non-speaking order
mtl
To
1. The Motor Accidents Claims Tribunal (Special Sub Court No.I / Small
Causes Court), Chennai.
2. United India Insurance Company Limited,
No.1, TKM Complex, Katpadi Road,
Vellore.
3. The Section Officer, VR Section, Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
R.HEMALATHA, J.
mtl
13.08.2024
https://www.mhc.tn.gov.in/judis
