Madras High Court
M/S.National Insurance Company ... vs R.Vellaichamy on 13 September, 2024
C.M.A.(MD) Nos.691 to 698 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 10.09.2024
Pronounced on 13.09.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) Nos.691 to 698 of 2021
and
C.M.P.(MD) Nos.6371, 6376, 6379, 6381,
6383, 6385, 6388 & 6391 of 2021
C.M.A.(MD) No.691 of 2021
M/s.National Insurance Company Limited,
Rep. by its Branch Manager,
D.No.63, Rasi Plaza,
West Pradharsanam Road,
Karur. ... Appellant
Vs.
1.R.Vellaichamy
S/o.Ramasamy
2.S.Jothimani
W/o.Sakthivel
3.V.Parameswaran
S/o.Velliasamy
4.V.Lakshmi
D/o.Velliasamy
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Page No. 1 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
5.M/s.Barani Transport,
Rep. by its Managing Director,
D.No.2, North Prathasanam Road,
Karur Town, Karur District.
6.A.Ramasubbu
S/o.Aariya Nayagun
7.M/s.Reliance General Insurance Company Ltd.,
Rep. by its Branch Manager,
D.No.570, Naicom Cross Road,
Near Royal Industrial Estate,
Vadaala (West), Mumbai. ... Respondents
[R1 died and R2 to R4 were recorded as his legal heirs vide
the order of this Court dated 07.08.2024]
[R6 remained ex parte before the Tribunal. Notice to him was
dispensed with vide the order of this Court dated 10.07.2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
30.08.2019 made in M.C.O.P.No.10 of 2019 on the file of the Motor
Accident Claims Tribunal, Additional District Judge, Karur.
For Appellant : Mr.A.S.Mathialagan
For R2 to R4 : Mr.K.Sudalaiyandi
For R5 : No appearance
For R7 : Mr.V.Sakthivel
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Page No. 2 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
C.M.A.(MD) No.692 of 2021
M/s.National Insurance Company Limited,
Rep. by its Branch Manager,
D.No.63, Rasi Plaza,
West Pradharsanam Road,
Karur. ... Appellant
Vs.
1.N.Shanmugam
S/o.Late.Natarajan
2.N.Parthiban
S/o.Late.Natarajan
3.M/s.Barani Transport,
Rep. by its Managing Director,
D.No.2, North Prathasanam Road,
Karur Town, Karur District.
4.A.Ramasubbu
S/o.Aariya Nayagun
5.M/s.Reliance General Insurance Company Ltd.,
Rep. by its Branch Manager,
D.No.570, Naicom Cross Road,
Near Royal Industrial Estate,
Vadaala (West), Mumbai. ... Respondents
[Death of R1 was recorded vide the order of this Court dated
07.08.2024]
[R4 remained ex parte before the Tribunal. Notice to him was
dispensed with vide the order of this Court dated 10.07.2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
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Page No. 3 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
30.08.2019 made in M.C.O.P.No.11 of 2019 on the file of the Motor
Accident Claims Tribunal, Additional District Judge, Karur.
For Appellant : Mr.A.S.Mathialagan
For R2 : Mr.K.Sudalaiyandi
For R3 : No appearance
For R5 : Mr.V.Sakthivel
C.M.A.(MD) No.693 of 2021
M/s.National Insurance Company Limited,
Rep. by its Branch Manager,
D.No.63, Rasi Plaza,
West Pradharsanam Road,
Karur. ... Appellant
Vs.
1.S.Jothimani
W/o.Sakthivel
2.M/s.Barani Transport,
Rep. by its Managing Director,
D.No.2, North Prathasanam Road,
Karur Town, Karur District.
3.A.Ramasubbu
S/o.Aariya Nayagun
4.M/s.Reliance General Insurance Company Ltd.,
Rep. by its Branch Manager,
D.No.570, Naicom Cross Road,
Near Royal Industrial Estate,
Vadaala (West), Mumbai. ... Respondents
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Page No. 4 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
[R3 remained ex parte before the Tribunal. Notice to him was
dispensed with vide the order of this Court dated 25.07.2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
30.08.2019 made in M.C.O.P.No.12 of 2019 on the file of the Motor
Accident Claims Tribunal, Additional District Judge, Karur.
For Appellant : Mr.A.S.Mathialagan
For R1 : Mr.K.Sudalaiyandi
For R2 : No appearance
For R4 : Mr.V.Sakthivel
C.M.A.(MD) No.694 of 2021
M/s.National Insurance Company Limited,
Rep. by its Branch Manager,
D.No.63, Rasi Plaza,
West Pradharsanam Road,
Karur. ... Appellant
Vs.
1.M.Jeyanthi
W/o.Maheskumar
2.M/s.Barani Transport,
Rep. by its Managing Director,
D.No.2, North Prathasanam Road,
Karur Town, Karur District.
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Page No. 5 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
3.A.Ramasubbu
S/o.Aariya Nayagun
4.M/s.Reliance General Insurance Company Ltd.,
Rep. by its Branch Manager,
D.No.570, Naicom Cross Road,
Near Royal Industrial Estate,
Vadaala (West), Mumbai. ... Respondents
[R3 remained ex parte before the Tribunal. Notice to him was
dispensed with vide the order of this Court dated 25.07.2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
30.08.2019 made in M.C.O.P.No.13 of 2019 on the file of the Motor
Accident Claims Tribunal, Additional District Judge, Karur.
For Appellant : Mr.A.S.Mathialagan
For R1 : Mr.K.Sudalaiyandi
For R2 : No appearance
For R4 : Mr.V.Sakthivel
C.M.A.(MD) No.695 of 2021
M/s.National Insurance Company Limited,
Rep. by its Branch Manager,
D.No.63, Rasi Plaza,
West Pradharsanam Road,
Karur. ... Appellant
Vs.
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Page No. 6 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
1.V.Subha
W/o.Veeramani
2.M/s.Barani Transport,
Rep. by its Managing Director,
D.No.2, North Prathasanam Road,
Karur Town, Karur District.
3.A.Ramasubbu
S/o.Aariya Nayagun
4.M/s.Reliance General Insurance Company Ltd.,
Rep. by its Branch Manager,
D.No.570, Naicom Cross Road,
Near Royal Industrial Estate,
Vadaala (West), Mumbai. ... Respondents
[R3 remained ex parte before the Tribunal. Notice to him was
dispensed with vide the order of this Court dated 25.07.2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
30.08.2019 made in M.C.O.P.No.14 of 2019 on the file of the Motor
Accident Claims Tribunal, Additional District Judge, Karur.
For Appellant : Mr.A.S.Mathialagan
For R1 : Mr.K.Sudalaiyandi
For R2 : No appearance
For R4 : Mr.V.Sakthivel
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Page No. 7 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
C.M.A.(MD) No.696 of 2021
M/s.National Insurance Company Limited,
Rep. by its Branch Manager,
D.No.63, Rasi Plaza,
West Pradharsanam Road,
Karur. ... Appellant
Vs.
1.N.Nazreen
W/o.Nizamdeen
2.M/s.Barani Transport,
Rep. by its Managing Director,
D.No.2, North Prathasanam Road,
Karur Town, Karur District.
3.A.Ramasubbu
S/o.Aariya Nayagan
4.M/s.Reliance General Insurance Company Ltd.,
Rep. by its Branch Manager,
D.No.570, Naicom Cross Road,
Near Royal Industrial Estate,
Vadaala (West), Mumbai. ... Respondents
[R3 remained ex parte before the Tribunal. Notice to him was
dispensed with vide the order of this Court dated 25.07.2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
30.08.2019 made in M.C.O.P.No.15 of 2019 on the file of the Motor
Accident Claims Tribunal, Additional District Judge, Karur.
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Page No. 8 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
For Appellant : Mr.A.S.Mathialagan
For R1 : Mr.R.Mathiyalagan
For R2 : No appearance
For R4 : Mr.V.Sakthivel
C.M.A.(MD) No.697 of 2021
M/s.National Insurance Company Limited,
Rep. by its Branch Manager,
D.No.63, Rasi Plaza,
West Pradharsanam Road,
Karur. ... Appellant
Vs.
1.Kajamoideen
S/o.Abdul Rahuman
2.Syed Musthafa
S/o.Abdul Rahuman
3.Jumanahassin
S/o.Abdul Rahuman
4.M/s.Barani Transport,
Rep. by its Managing Director,
D.No.2, North Prathasanam Road,
Karur Town, Karur District.
5.A.Ramasubbu
S/o.Aariya Nayagun
6.M/s.Reliance General Insurance Company Ltd.,
Rep. by its Branch Manager,
D.No.570, Naicom Cross Road,
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Page No. 9 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
Near Royal Industrial Estate,
Vadaala (West), Mumbai. ... Respondents
[R1 - died]
[R5 remained ex parte before the Tribunal. Notice to him was
dispensed with vide the order of this Court dated 25.07.2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
30.08.2019 made in M.C.O.P.No.16 of 2019 on the file of the Motor
Accident Claims Tribunal, Additional District Judge, Karur.
For Appellant : Mr.A.S.Mathialagan
For R2 & R4 : No appearance
R3 : Mr.R.Mathiyalagan
For R6 : Mr.V.Sakthivel
C.M.A.(MD) No.698 of 2021
M/s.National Insurance Company Limited,
Rep. by its Branch Manager,
D.No.63, Rasi Plaza,
West Pradharsanam Road,
Karur. ... Appellant
Vs.
1.Shahul Hameed
S/o.Madharsha Rowther
2.Jaffer Nisha
W/o.Shahul Hameed
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Page No. 10 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
3.M/s.Barani Transport,
Rep. by its Managing Director,
D.No.2, North Prathasanam Road,
Karur Town, Karur District.
4.A.Ramasubbu
S/o.Aariya Nayagun
5.M/s.Reliance General Insurance Company Ltd.,
Rep. by its Branch Manager,
D.No.570, Naicom Cross Road,
Near Royal Industrial Estate,
Vadaala (West), Mumbai. ... Respondents
[R4 remained ex parte before the Tribunal. Notice to him was
dispensed with vide the order of this Court dated 25.07.2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
30.08.2019 made in M.C.O.P.No.17 of 2019 on the file of the Motor
Accident Claims Tribunal, Additional District Judge, Karur.
For Appellant : Mr.A.S.Mathialagan
For R1 & R2 : Mr.R.Mathiyalagan
R3 : No appearance
For R5 : Mr.V.Sakthivel
*****
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Page No. 11 of 24
C.M.A.(MD) Nos.691 to 698 of 2021
COMMON JUDGMENT
The instant appeals challenge the common award dated 30.08.2019
passed by the Motor Accident Claims Tribunal [Additional District
Court], Karur, in M.C.O.P.Nos.10 to 17 of 2019 aggrieved by the finding
on negligence.
2. The appeals arise out of eight claim petitions. In 4 claim
petitions, the legal representatives of the deceased are the petitioners. In
the other 4 claim petitions, the injured are the petitioners. They had stated
in the claim petitions that on 29.08.2013, at about 11.50 a.m., while the
deceased and the injured were travelling in a bus bearing Registration
No.TN-47-AB-1919, insured with the appellant herein, the driver of the
bus drove the same in a rash and negligent manner and collided with the
lorry from behind, which was carrying a blade used in a windmill, as a
result of which a few persons died and many others were injured.
3. The owner and the insurer of the lorry filed a counter before the
Tribunal, stating that the accident took place only due to the negligence of
the bus driver and that they were unnecessarily impleaded as parties.
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C.M.A.(MD) Nos.691 to 698 of 2021
4. The appellant, the insurer of the bus, filed a counter stating that
the accident took place only due to the negligence of the lorry driver, who
had suddenly turned the vehicle to the left, and the bus driver, despite his
best efforts, dashed against the protruding blade used in the windmill, and
hence, the appellant is not liable to pay any compensation.
5. Before the Tribunal, the claimants examined some of the legal
heirs of the deceased, many injured eyewitnesses, and doctors who had
treated the injured witnesses, as P.W.1 to P.W.10, and marked Exs.P1 to
P57. The appellant and the insurer of the lorry examined R.W.1 to R.W.4
and marked Exs.R1 and R2.
6. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the accident took place only due to the
rash and negligent driving of the driver of the bus insured with the
appellant herein and directed the appellant to pay the compensation
determined in each of the claim petitions.
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C.M.A.(MD) Nos.691 to 698 of 2021
7. The learned counsel for the appellant, the insurer of the bus,
submitted that the finding of the Tribunal fastening the liability on the
appellant is erroneous; that the lorry driver had taken a sharp left and the
blade used in the windmill was unauthorisedly protruding to the extent of
5 meters on the back side of the lorry and because of the sharp turn of the
lorry, the bus, which was going in the right direction, collided with the
blade; and that the entire liability ought to have been fixed on the driver of
the lorry, and in any case, contributory negligence ought to have been
fixed and relied on the evidence of R.W.1 and R.W.2.
8. The learned counsel for the claimants, per contra, submitted that
the finding of the Tribunal is in accordance with law and therefore, there
is no reason to interfere with the award.
9. The learned counsel for the insurer of the lorry, M/s.Reliance
General Insurance Company Limited, submitted that the finding of the
Tribunal holding the bus driver guilty of negligence, based on the
evidence of eyewitnesses and the final report filed by the police and the
Judgment of the Criminal Court convicting the bus driver, does not call
for any interference.
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C.M.A.(MD) Nos.691 to 698 of 2021
10. The learned counsel for the appellant was unable to point out
any infirmity in the quantum of compensation awarded by the Tribunal to
the claimants in each of the claim petitions. Therefore, the quantum of
compensation awarded by the Tribunal in all claim petitions is not the
issue in these appeals.
11. Therefore, the only question involved in the instant appeal is
whether the finding on negligence by the Tribunal is justified.
12. The claimants had examined the injured witnesses and some of
the eyewitnesses to prove the manner of the accident. They had also
marked Ex.P1, the FIR, to corroborate the version of the eyewitnesses,
besides Ex.P26, the final report filed by the police after the investigation.
13. That apart, R.W.1, the bus driver, had admitted in his cross-
examination that he was convicted by the Criminal Court. He had further
admitted that the FIR was lodged against him, stating that he was talking
on the cellphone at the time of the occurrence. The witnesses before the
Criminal Court had deposed that R.W.1, the bus driver, was talking on the
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C.M.A.(MD) Nos.691 to 698 of 2021
cellphone while driving. The evidence of eyewitnesses is cogent and
convincing, which is corroborated by the records of the criminal case
besides the admission made by R.W.1 that he was convicted by the
Criminal Court. It is R.W.1's version that the lorry driver, who was
proceeding in front of the bus, had suddenly taken a left turn towards the
Petrol Bunk, and thereby, the blade used in the windmill, which was
protruding to the extent of 5 meters, blocked the road, and hence, he could
not control the bus, which resulted in the accident. R.W.1 is an interested
witness, and his evidence does not inspire confidence in the light of the
evidence produced on the side of the claimants, namely, the oral evidence
of eyewitnesses and the criminal court records.
14. The contention of the learned counsel for the appellant is that
since there was an authorized protrusion of the blade used in the windmill
from the backside of the lorry, it has to be considered as a violation and
hence, contributory negligence has to be fixed on the lorry driver. This
Court is of the view that there is no evidence before the Tribunal that the
protrusion was unauthorized and hence the same cannot be presumed.
Further, the manner of the accident, by which several people who were
seated in the bus, died and were injured, would speak for itself. The
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C.M.A.(MD) Nos.691 to 698 of 2021
principle res ipsa loquitur would be applicable to the facts of the instant
case. But for the rash and negligent driving, this accident could not have
occurred.
15. R.W.2, the Motor Vehicle Inspector, had deposed that the
accident took place only because the lorry driver had taken a left turn.
This Court is of the view that since he is not an eyewitness to the
occurrence, his evidence, which is in the nature of an opinion, cannot be
accepted in the light of the overwhelming evidence to the contrary.
16. Therefore, this Court is of the view that the finding of the
Tribunal holding that the driver of the bus insured with the appellant is
liable for rash and negligent driving is in accordance with law and is
justified. The point is answered accordingly.
17. As stated above, since the learned counsel for the appellant was
unable to point out any infirmity in the quantum of compensation awarded
by the Tribunal, the award is confirmed. The instant appeals are liable to
be dismissed.
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C.M.A.(MD) Nos.691 to 698 of 2021
C.M.A.(MD) No.691 of 2021 [M.C.O.P.No.10 of 2019]
18. The appellant, Insurance Company, is directed to deposit the
award amount of Rs.11,52,000/- together with interest at 7.5% per annum
from the date of the claim petition till the date of the realization and
proportionate costs, after deducting the amount already deposited, if any,
within a period of four (4) weeks from the date of receipt of a copy of this
Judgment.
19. On such deposit, the first to fourth respondents/claimants are
permitted to withdraw the same as per the apportionment fixed by the
Tribunal along with the proportionate interest and costs, less the amount
already withdrawn, if any, by filing an application before the Tribunal.
C.M.A.(MD) No.692 of 2021 [M.C.O.P.No.11 of 2019]
20. The appellant, Insurance Company, is directed to deposit the
award amount of Rs.6,34,000/- together with interest at 7.5% per annum
from the date of the claim petition till the date of the realization and
proportionate costs, after deducting the amount already deposited, if any,
within a period of four (4) weeks from the date of receipt of a copy of this
Judgment.
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C.M.A.(MD) Nos.691 to 698 of 2021
21. On such deposit, the first and second respondents/claimants are
permitted to withdraw the same as per the apportionment fixed by the
Tribunal along with the proportionate interest and costs, less the amount
already withdrawn, if any, by filing an application before the Tribunal.
C.M.A.(MD) No.693 of 2021 [M.C.O.P.No.12 of 2019]
22. The appellant, Insurance Company, is directed to deposit the
award amount of Rs.4,93,332/- together with interest at 7.5% per annum
from the date of the claim petition till the date of the realization and
proportionate costs, after deducting the amount already deposited, if any,
within a period of four (4) weeks from the date of receipt of a copy of this
Judgment.
23. On such deposit, the first respondent/claimant is permitted to
withdraw the same along with the proportionate interest and costs, less the
amount already withdrawn, if any, by filing an application before the
Tribunal.
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C.M.A.(MD) Nos.691 to 698 of 2021
C.M.A.(MD) No.694 of 2021 [M.C.O.P.No.13 of 2019]
24. The appellant, Insurance Company, is directed to deposit the
award amount of Rs.3,71,365/- together with interest at 7.5% per annum
from the date of the claim petition till the date of the realization and
proportionate costs, after deducting the amount already deposited, if any,
within a period of four (4) weeks from the date of receipt of a copy of this
Judgment.
25. On such deposit, the first respondent/claimant is permitted to
withdraw the same along with the interest and costs, less the amount
already withdrawn, if any, by filing an application before the Tribunal.
C.M.A.(MD) No.695 of 2021 [M.C.O.P.No.14 of 2019]
26. The appellant, Insurance Company, is directed to deposit the
award amount of Rs.3,51,630/- together with interest at 7.5% per annum
from the date of the claim petition till the date of the realization and
proportionate costs, after deducting the amount already deposited, if any,
within a period of four (4) weeks from the date of receipt of a copy of this
Judgment.
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C.M.A.(MD) Nos.691 to 698 of 2021
27. On such deposit, the first respondent/claimant is permitted to
withdraw the same along with the interest and costs, less the amount
already withdrawn, if any, by filing an application before the Tribunal.
C.M.A.(MD) No.696 of 2021 [M.C.O.P.No.15 of 2019]
28. The appellant, Insurance Company, is directed to deposit the
award amount of Rs.2,74,005/- together with interest at 7.5% per annum
from the date of the claim petition till the date of the realization and
proportionate costs, after deducting the amount already deposited, if any,
within a period of four (4) weeks from the date of receipt of a copy of this
Judgment.
29. On such deposit, the first respondent/claimant is permitted to
withdraw the same along with the interest and costs, less the amount
already withdrawn, if any, by filing an application before the Tribunal.
C.M.A.(MD) No.697 of 2021 [M.C.O.P.No.16 of 2019]
30. The appellant, Insurance Company, is directed to deposit the
award amount of Rs.8,44,000/- together with interest at 7.5% per annum
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C.M.A.(MD) Nos.691 to 698 of 2021
from the date of the claim petition till the date of the realization and
proportionate costs, after deducting the amount already deposited, if any,
within a period of four (4) weeks from the date of receipt of a copy of this
Judgment.
31. On such deposit, the first to third respondents/claimants are
permitted to withdraw the same as per the apportionment fixed by the
Tribunal along with the proportionate interest and costs, less the amount
already withdrawn, if any, by filing an application before the Tribunal.
C.M.A.(MD) No.698 of 2021 [M.C.O.P.No.17 of 2019]
32. The appellant, Insurance Company, is directed to deposit the
award amount of Rs.15,26,000/- together with interest at 7.5% per annum
from the date of the claim petition till the date of the realization and
proportionate costs, after deducting the amount already deposited, if any,
within a period of four (4) weeks from the date of receipt of a copy of this
Judgment.
33. On such deposit, the first and the second respondents/claimants
are permitted to withdraw the same as per the apportionment fixed by the
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C.M.A.(MD) Nos.691 to 698 of 2021
Tribunal along with the proportionate interest and costs, less the amount
already withdrawn, if any, by filing an application before the Tribunal.
34. In the result, these Civil Miscellaneous Appeals are dismissed.
No costs. Consequently, the connected Miscellaneous Petitions are
closed.
13.09.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The Additional District Judge,
Motor Accident Claims Tribunal,
Karur, Karur District.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras high Court,
Madurai.
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C.M.A.(MD) Nos.691 to 698 of 2021
SUNDER MOHAN, J.
JEN
Pre-Delivery Common Judgment made
in
C.M.A.(MD) Nos.691 to 698 of 2021
and
C.M.P.(MD) Nos.6371, 6376, 6379, 6381,
6383, 6385, 6388 & 6391 of 2021
13.09.2024
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