Madras High Court
United India Insurance Co. Ltd vs Hariharan ... 1St on 8 January, 2024
C.M.A. No. 3470 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
C.M.A. No. 3470 of 2021
United India Insurance Co. Ltd.,
Third Party Hub, Silingi Building,
No.134, Greams Road,
Murugesanaicker Street,
Chennai - 600 006. ... Appellant / 2nd Respondent
Vs.
1. Hariharan ... 1st Respondent / Petitioner
2. Senthamarai Kannan ... 2nd Respondent / 1st Respondent
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and decree dated 14.12.2020
passed in M.C.O.P. No. 5155 of 2018 on the file of the VI Judge, Motor
Accident Claims Tribunal, IV Court of Small Causes, Chennai.
For Appellant : M/s. L. Ramanathan
For R1 : M/s. Amar D. Pandiyan
For R2 : No Appearance
1/10
https://www.mhc.tn.gov.in/judis
C.M.A. No. 3470 of 2021
JUDGMENT
This Civil Miscellaneous appeal has been filed by the Insurance
Company challenging the liability fixed on them to indemnify the first
respondent in M.C.O.P. No. 5155 of 2018, dated 14.12.2020 on the file of
the VI Judge, Motor Accident Claims Tribunal, IV Court of Small Causes,
Chennai.
2. For the sake of convenience, the parties are referred herein
according to their litigative status and rank before the Tribunal.
3. On 14.07.2018, at about 7:30PM, the claimant, who is the son
of the first respondent, was travelling as a pillion rider in the first
respondent's TVS Wego motorcycle bearing Registration No.TN-13-AL-
1451 along with two other persons, the motor cycle was ridden by one
Keerthivasan in a rash and negligent manner without observing the traffic
rules from east to west, while they reached near Ritherdon Signal junction,
EVR Road, Chennai, due to rash and negligent riding of the Keerthivasan,
who rode the motor cycle in a zig zag manner, dashed against a car bearing
Registration No.TN-18-AM-5431 proceeding from west to east, thereby the
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claimant sustained grievous injuries. A criminal case was registered in the
Cr.No.274/j1/2018 on the file of D6-Anna square Traffic Investigation,
Chinthatharipet, Chennai. For the injuries sustained, the claimant has filed a
claim petition against the owner and insurer of the TVS Wego motorcycle
seeking compensation for a sum of Rs.20,00,000/- under section 166 of the
Motor Vehicles Act.
4. The first respondent is the owner of the TVS Wego
motorcycle bearing Registration No.TN-13-AL-1451 has not contested the
claim and remained ex-parte. The second respondent - insurance company,
who is the insure of the said TVS Wego motorcycle filed a counter and
contended that the rider was not having a valid driving licence and the
accident was also taken place by involvement of a car, whereas the owner of
the car was not impleaded as party, hence stated the claim petition is not
maintainable. The insurance company also contended the compensation
claimed under various heads are on the higher side, hence prays to dismiss
the claim petition.
5. Before the Tribunal, the claimant himself examined as P.W.1
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and Exs.P.1 to P.12 were marked and the Medical Board Report of the
claimant is marked as Ex.C.1. On the side of the second respondent -
insurance company, R.W.1 was examined and Exs.R.1 to R.4 were marked.
6. The Tribunal after considering the evidences placed on
record, in point no.1, has held that the rash and negligence on the part of the
rider of the first respondent's motorcycle is responsible for the accident. In
point nos.2 and 3, the Tribunal has quantified and granted compensation for
a sum of Rs.3,86,105/- along with interest @ 7.5% per annum from the date
of filing of petition till the date of realization. In point no.4, the Tribunal has
fixed the liability on the part of the second respondent - insurance company
to indemnify the first respondent, who is the owner of the TVS Wego
motorcycle and to pay compensation to the claimant and to recover the same
from the first respondent.
7. Aggrieved over the award, the insurance company has filed
this appeal, challenging the liability fixed on the them to indemnify the first
respondent and on the ground that three persons were travelled in the motor
cycle at the time of accident and there is a violation of policy condition.
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8. The learned counsel appearing for the insurance company
submitted that there is ample evidences to show that the claimant has
travelled as a pillion rider along with three persons, at the time of accident
and he is also the son of the first respondent, who is the owner of the motor
cycle, hence, he is not entitled to get compensation. Since the claimant, who
is borrower of vehicle, steps into the shoes of the owner of the two wheeler,
he is not entitled to get any compensation. Further, he has allowed three
persons to travel in the motorcycle and the rider of the motor cycle has no
valid driving licence at the time of occurrence, insurance company is not
liable to pay compensation and to indemnify the first respondent.
9. The learned counsel appearing for the claimant submitted that,
it is true that three persons were travelled in the motorcycle, but the same is
not the reason for the accident. The accident was happened only due to the
negligent riding by the rider of the motorcycle, in which the claimant
travelled as a pillion rider, further submitted that there was a coverage for
the pillion rider in the insurance policy, therefore, the Tribunal has rightly
awarded compensation, hence prays to confirm the award.
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10. I have considered the submissions made on both sides and
perused the materials available on record.
11. It is the admitted case of the claimant that, he is the son of the
first respondent, who is the owner of the motorcycle and according to him,
while he was travelling in the motorcycle along with two other persons, the
accident has taken place. He has also admitted that the motorcycle was
ridden by his friend Keerthivasan in a rash and negligent manner, which
resulted in accident. The Ex.P.1 - FIR, also shows that immediately after the
accident, the car driver lodged a complaint stating that the rider of the two
wheeler has negligently ridden the same and invited the accident.
12. I have carefully scrutinized the evidence of P.W.1, and
according to him, he was a pillion rider and his friend has ridden the
motorcycle in a rash and negligent manner and hit on the car. He has not
stated that due to three persons travelled in the motorcycle, has occurred.
Similarly, there was no evidence produced by the respondent that the
accident was happened, since three persons travelled in the motorcycle. The
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evidence of R.W.1 - Insurance Official and Ex.P.1 - FIR corroborates the
evidence of P.W.1 that the rash and negligence of the rider of the motorcycle
is responsible for the accident.
13. The case of the appellant is that the claimant has also
contributed to the accident, but there is no evidence adduced by the
appellant - insurance company for implicating the claimant for his
contributory negligence other than admitting three persons to travel along
with him. This Court is not able to accept the case of the appellant that there
is a contributory negligence on the part of the claimant herein. It is also the
admitted case of the insurance company that there was a coverage for the
pillion rider and in this case, the injured is a pillion rider and as per the
policy coverage, he is entitled to get compensation for the injuries sustained
by him. Even though, it is stated that the claimant herein is the son of the
first respondent, who is the owner of the offending motorcycle, this Court is
of the view that there is no negligence on the part of the claimant herein and
he has not ridden the vehicle at the time of accident, hence the contention of
the appellant, that he is not entitled to get compensation is not sustainable
and accordingly, this appeal is hereby rejected.
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14. With regard to quantum of compensation, considering the age,
date of accident, nature of injuries, period of treatment and disability
sustained by the claimant, the Tribunal has awarded a just and reasonable
compensation, hence this Court is inclined to confirm the same.
15. In the result, this civil miscellaneous appeal is dismissed and
the award of the Tribunal is hereby confirmed. The appellant - insurance
company is directed to pay the compensation to the claimant along 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 judgment to the credit
of M.C.O.P.No.5155 of 2018 on the file of the VI Judge, Motor Accidents
Claims Tribunal, IV Court of Small Causes, Chennai. The Tribunal shall
disburse the amount now awarded by this Court by directly giving credit to
the Savings Bank Account of the claimant. The second respondent -
insurance company is given liberty to recover the same from the first
respondent, as per the award of the Tribunal. There shall be no order as to
costs in the present appeal.
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08.01.2024
stn
Index:Yes/No
Speaking Order:Yes/No
Neutral Citation Case: Yes/No
To:
1. The VI Judge,
Motor Accident Claims Tribunal,
IV Court of Small Causes, Chennai.
2. The Section Officer,
V.R.Section,
High Court, Chennai.
K. RAJASEKAR, J.
stn
https://www.mhc.tn.gov.in/judis
08.01.2024
https://www.mhc.tn.gov.in/judis
