Madras High Court
The Divisional Manager vs Libitta on 11 September, 2024
C.M.A.(MD) No.682 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.09.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.682 of 2020
and
C.M.P.(MD)No.6861 of 2020
The Divisional Manager,
having its office at:
The Oriental Insurance Co. Ltd.,
SKG Samy Comples, 1st Floor,
No.82, North Car Street, Tenkasi,
Tirunelveli. ... Appellant
Vs.
1.Libitta
2.Parvathy ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated 16.03.2020
passed in M.C.O.P.No.1497 of 2015 on the file of the Motor Accidents
Claims Tribunal cum Special Sub Court, Tirunelveli.
For Appellant : Mr.E.Chandrasekaran
For Respondents : No appearance
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Page No. 1 of 7
C.M.A.(MD) No.682 of 2020
*****
JUDGMENT
The instant appeal has been filed challenging the finding on
negligence.
2. The first respondent filed a claim petition stating that while she
was travelling as a pillion rider in a two-wheeler belonging to the second
respondent, a TATA 407 mini lorry came and dashed the two-wheeler
from behind, as a result of which, she sustained grievous injuries.
3. The second respondent herein/the owner of the two-wheeler
remained ex parte before the Tribunal.
4. The appellant, insurer of the two wheeler, in which, the claimant
travelled as a pillion rider, filed a counter stating that even as per the
claim petition, an unknown TATA 407 mini lorry was involved in the
occurrence and the rider of the two-wheeler was not guilty of negligence
and hence, the appellant is not liable to pay the compensation.
5. The claimant examined herself as P.W.1 and Doctors, who
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examined her, as P.W.2 and P.W.3 and marked Exs.P1 to P14. The
appellant examined one Perumal as R.W.1 and marked the xerox copy of
the Final Report as Ex.R1.
6. The Tribunal, after taking into consideration oral and
documentary evidence, held that the accident took place only due to the
negligence of the rider of the two wheeler, in which, the claimant travelled
and hence, the appellant is liable to pay the compensation of Rs.1,04,706/-
7. The learned counsel for the appellant/Insurance Company
submitted that the claimant had lodged an FIR-Ex.P1, in which, she had
stated that an unknown TATA 407 mini lorry had dashed against the two-
wheeler from behind, which caused the accident and that even in the claim
petition, she stated that the accident took place because of an unknown
vehicle; and that the other evidence on record suggests that the version of
P.W.1 in her deposition that the accident took place due to the negligence
of the rider of the two wheeler, is afterthought and hence, submitted that
the award has to be set aside.
8. Since notice sent to the respondent 2 was returned with an
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endorsement “Refused”, this Court deemed it a service of notice and
printed the name in the cause list. Notice to the first respondent was
returned with an endorsement “Left”, “No residence”. Since notice to the
first respondent was served through her counsel, this Court, vide order
dated 04.06.2024, directed to print her name in the cause list. However,
none has entered appearance.
9. The point for consideration in the instant appeal is ‘whether the
finding on negligence by the Tribunal is just and reasonable?’
10. It is the case of the first respondent in the claim petition that
there was a TATA 407 mini lorry that came and dashed the two wheeler
and caused the accident. The claimant had also given the same version in
her complaint to the Police, which is marked as Ex.P1. The appellant had
examined R.W.1-the Sub Inspector of Police, who investigated the crime
No.85 of 2015, which was lodged by the claimant/first respondent. Even
during the investigation, the first respondent stated before the Police that
the accident was caused by an unknown mini lorry. That apart, the
claimant had admitted in her cross-examination that since the Police had
referred the case as a mistake of fact as they were unable to identify the
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vehicle, she filed this claim against the owner of the two wheeler.
Therefore, in the light of the above evidence the version of P.W.1 that the
rider was guilty of negligence is afterthought in order to claim the
compensation.
11. This Court is of the view that the appellant cannot be made
liable as the rider of the two-wheeler was not guilty of negligence. Hence,
the award passed by the Tribunal is set aside.
12. The appellant/Insurance Company shall be entitled to claim
refund of the amount, if any, deposited by them, by filing an suitable
application before the Tribunal.
13. In view of the above, this Civil Miscellaneous Appeal is
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
11.09.2024
Index: Yes/ No
NCC: Yes / No
Speaking Order / Non-Speaking Order
apd
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To:
1.The Motor Accidents Claims Tribunal cum Special Sub Court,
Tirunelveli.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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SUNDER MOHAN, J.
apd
11.09.2024
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