Madras High Court
The Branch Manager vs Vellathurai on 4 September, 2024
CMA(MD).No.882 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A(MD).No.882 of 2012
The Branch Manager,
Royal Sundaram Alliance Insurance Company Limited,
No.46, Whites Road,
Chennai- 14. ... Appellant
Vs
1. Vellathurai
2. Porchelvan
3. New India Insurance Company Limited,
Tiruppathur. ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act to set aside the fair and decreetal order dated
22.12.2011 made in MCOP.No.383 of 2005, on the file of the Motor
Accident Claims Tribunal (Principal Sub Court), Tenkasi.
For Appellant : Mr. S.Srinivasaraghavan
For R1 : No Appearance
For R2 : Mr.E.Murugan
For R3 : Mr.G.Prabhurajadurai
1/8
https://www.mhc.tn.gov.in/judis
CMA(MD).No.882 of 2012
JUDGMENT
The instant appeal has been filed challenging the finding on liability.
2.The first respondent/claimant filed the claim petition stating that
while he was riding his two wheeler, the offending vehicle, namely the
Maxi Cab Van insured with the third respondent herein, had suddenly
applied brake, as a result of which, he lost control and dashed the Maxi
Cab Van from behind and fell off the vehicle, which caused grievous
injuries to him.
3.The third respondent herein filed a counter affidavit stating that
the accident took place only because of the rash and negligent riding of the
claimant; that he had dashed against the stationary van and therefore, they
are not liable to pay the compensation.
4.The insurer of the two wheeler, namely the appellant herein filed a
counter affidavit stating that they are not liable to pay the compensation.
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since the accident took place only due to the negligence of the offending
vehicle, namely the Maxi Cab Van and prayed for dismissal of the claim
petition before the Tribunal.
5.The claimant examined himself as Ex.P.W.1, the Doctor as P.W.2
and marked Ex.P1 to Ex.P11. Neither the appellant nor the third
respondent had examined witnesses or marked any documents.
6.The Tribunal, after taking into consideration the oral documentary
evidence, held that the accident took place both due to the driver of the
Maxi Cab Van and the claimant and apportioned contributory negligence at
50% each and determined the compensation of Rs.1,98,000/-. However, in
the operative portion of the award, the Tribunal had directed only the
appellant to pay a sum of Rs.99,000/-, which is 50% of the compensation
amount.
7.The learned Counsel for the appellant submitted that from the
compensation payable, the Tribunal ought to have directed the third
respondent/insurer of the Maxi Cab Van to pay 50% of the compensation
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amount; that the appellant was not liable to pay any compensation as the
insurer himself was a tortfeasor; that the direction of the Tribunal even to
pay personal accident coverage is not in accordance with law since the
claimant had not established that he had suffered any permanent disability
and prayed for allowing the appeal.
8.The learned Counsel for the third respondent fairly submitted that
the third respondent would at best be liable to pay 50% of the
compensation amount determined by the Tribunal.
9.Though notice was served on the first respondent, none has
entered appearance.
10.The point for consideration in the instant appeal is whether the
finding on liability by the Tribunal is justified.
11.On perusal of the evidence of the claimant/P.W.1 and the other
evidence on record, it is clear that the accident took place both due to the
rash and negligent driving of the Maxi Cab Van and the negligence of the
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rider. The claimant/rider ought to have been careful and he had
contributed to the accident. The finding of the tribunal fixing 50%
contributory negligence on the claimant cannot be faulted. Further there is
no challenge to the said finding. The Tribunal ought to have directed the
third respondent, who is the insurer of the Maxi Cab Van to pay 50% of the
compensation amount. Therefore, this Court is of the view that out of the
compensation of Rs.1,98,000/-, the third respondent/Insurance Company
would be liable to pay a sum of Rs.99,000/-.
12.As regards the remaining 50%, the appellant/the insurer of the
claimant who is a tortfeasor to that extent, the appellant would not be
liable to compensate. However, the claimant would be entitled to claim
benefit of personal accident coverage from the appellant provided the other
conditions in the contract of insurance have been fulfilled. This Court is of
the view that in the absence of any evidence to show that the first
respondent has suffered any permanent disability the said benefit also
cannot be extended to the claimant. It is open to the claimant to approach
the appellant as per the terms of the contract of insurance in the manner
known to law, if he is or otherwise eligible to claim the benefit of the
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personal accident coverage.
13.Therefore, this Court is of the view that the impugned award is
liable to be modified. Accordingly, this civil miscellaneous appeal is
allowed with a direction to the third respondent to deposit a sum of Rs.
99,000/- with interest at 7.5% per annum within a period of four weeks,
from the date of receipt of a copy of this order. On such deposit, the
claimant shall be permitted to withdraw the same by filing a suitable
application. No costs.
14.It is reported that the appellant has already deposited a sum of
Rs.99,000/-. The appellant is permitted to withdraw the same by filing a
suitable application.
04.09.2024
Index : yes / No
Internet : yes / No
LR
https://www.mhc.tn.gov.in/judis
To
The Motor Accident Claims Tribunal
(Principal Sub Court),
Tenkasi.
Copy to
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
SUNDER MOHAN, J.
LR
04.09.2024
https://www.mhc.tn.gov.in/judis
