Madras High Court
The Branch Manager vs R.Ganesan on 16 October, 2024
C.M.A.(MD) No.1218 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.10.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.1218 of 2014
and
M.P.(MD)No.4 of 2014
The Branch Manager,
National Insurance Company Limited,
Kamarajar Bazaar,
Bodinayakanur Post,
Theni. ... Appellant
Vs.
1.R.Ganesan,
2.N.Nagalakshmi,
3.A.K.S.Ramdoss,
4.The Oriental Insurance Co. Ltd,
Theni. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgement and decree dated 15.03.2012
passed in M.C.O.P.No.14 of 2009, on the file of the Motor Accidents
Claims Tribunal, Sub Court, Periyakulam.
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Page No. 1 of 7
C.M.A.(MD) No.1218 of 2014
For Appellant : Mr.D.Sivaraman
For Respondents
for R1 : Mr.J.Barathan
for R2 : No appearance
for R3 : Died
for R4 : Mr.C.Jawahar Ravindran
*****
JUDGMENT
The appeal has been preferred by the insurance company
challenging the finding on negligence.
2. The first respondent filed a claim petition stating that while he
was travelling as one of the pillion riders in the two wheeler, a lorry
insured with the appellant, without any indication, suddenly reversed the
vehicle; and that despite the best efforts taken by the rider of the two
wheeler to stop the vehicle, the lorry dashed against the two wheeler, as a
result of which the riders died and the first respondent suffered serious
injuries.
3. The owner of the lorry/second respondent herein remained ex
parte before the Tribunal.
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4. The appellant filed a counter stating that the accident took place
only due to the negligence of the rider of the two wheeler; that the driver
of the insured vehicle did not have a valid licence; and that in any case,
the compensation claimed was excessive.
5. The owner and the insurer of the two wheeler were also made
parties in the claim petition.
6. Before the Tribunal, the first respondent examined two witnesses
as P.W.1 and P.W.2 and marked Exs.P1 to P13. The appellant neither
examined any witnesses nor marked any documents. The fourth
respondent herein filed a copy of the award in M.C.O.P.No.17 of 2010 as
Ex.R1 and the decree as Ex.R2.
7. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the accident took place only due to the
negligence of the lorry driver and directed the appellant to pay the
compensation of Rs.4,05,000/-.
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8(a). The learned counsel for the appellant submitted that though
the Tribunal held that the rider of the two wheeler was also guilty of
negligence, it had fixed the entire liability on the appellant, which is
erroneous.
8(b). The learned counsel for the fourth respondent further fairly
submitted that in two other claim petitions filed by the dependents of the
other riders of the two wheeler in M.C.O.P.No.17 of 2010 and in
M.C.O.P.No.253 of 2009, on the file of the Motor Accidents Claims
Tribunal/Principal District Court, Theni, was also allowed and the entire
negligence was fixed on the lorry driver; and that the appellant has not
preferred any appeal against those awards.
9. The learned counsel for the first respondent, per contra,
submitted that the evidence discloses that the driver of the insured vehicle
was guilty of rash and negligent driving and therefore, the award of the
Tribunal is just and reasonable and no interference is called for.
10. The only point for consideration in the instant appeal is
‘whether the finding on negligence by the Tribunal is justified?’
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11. The quantum of compensation awarded by the Tribunal is not
under challenge. Though the Tribunal had held that the rider of the two
wheeler also contributed the accident, this Court finds that the appellant
has not let in any contra evidence to the evidence let in by the claimants to
prove the manner of the accident. The evidence of P.W.2, which
corroborated by the contents of FIR, would show that the lorry driver was
guilty of rash and negligent driving.
12. That apart, the award of the Motor Accidents Claims
Tribunal/Principal District Judge, Theni, in M.C.O.P.No.17 of 2010 and
in M.C.O.P.No.253 of 2009, in the claim petition filed by the legal
representatives of the deceased riders, the entire negligence was fixed on
the lorry driver, which has not been challenged by the appellant.
Therefore, the appellant is estopped for challenging the finding on
negligence in this case. For the above reasons, this Court finds that the
appeal deserves to be dismissed and hence dismissed.
13. The appellant is liable to pay Rs.4,05,000/- (Rupees Four Lakhs
and Five Thousand only) together with interest @ 7.5% p.a., from the date
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of the claim petition till the date of realization and costs.
14. It is reported by the learned counsel for the appellant that the
appellant has deposited the entire award amount with interest and costs
and the first respondent/claimant has withdrawn 50% of the same. Hence,
the first respondent/claimant is permitted to withdraw the remaining
amount by filing suitable application before the Tribunal.
15. In the result, this Civil Miscellaneous Appeal is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
16.10.2024
Index: Yes/ No
NCC: Yes / No
Speaking Order / Non-Speaking Order
apd
To:
1. The Motor Accidents Claims Tribunal, Sub Court, Periyakulam.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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SUNDER MOHAN, J.
apd
16.10.2024
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