Madras High Court
Ramuthai vs The Branch Manager on 12 March, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 04.03.2025
Pronounced on : 12.03.2025
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
Rev.Aplc.(MD)No.34 of 2025
in
C.M.A(MD)No.1025 of 2017
Ramuthai ...Petitioner/1st Respondent/Petitioner
Vs
1.The Branch Manager,
National Insurance Company Limited,
No.5A, Sub Collector Office Road,
District Court Complex,
Dindigul District. ...Respondent/Appellant/3rd Respondent
2.M.Sangeetha ...Respondent/2nd Respondent/1st Respondent
3.Murrugesan ...Respondent/3rd Respondent/1st Respondent
PRAYER: Review Application is filed under Order 47 Rule 1 & 2 r/w Section
114 of C.P.C., against the judgment and decree made in C.M.A.(MD)No.1025
of 2017 on the file of this Court, dated 01.06.2023.
For Petitioner : Mr.R.Santhanam
For Respondents : Mr.J.S.Murali for R1
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ORDER
The instant review petition has been filed seeking to review the order
passed by this Court, dated 01.06.2023 in C.M.A.(MD)No.1025 of 2017.
2.A claim petition was filed in M.C.O.P.No.2 of 2015, before the Motor
Accident Claims Tribunal, Dindigul, by a passenger of an Auto seeking
compensation on the ground that due to the composite negligence on the part of
the auto driver and the driver of the offending vehicle, namely, Bolero car, the
accident had taken place.
3.The tribunal had found that the accident had taken place solely due to
the negligence on the part of the driver of the Bolero car. However, proceeded
to fix 10% of the composite negligence on the part of the auto driver on the sole
ground that he did not possess a badge to drive the LMV vehicle at the relevant
point of time. The Auto was insured with the appellant insurance company and
the Bolero car was not insured at the time of accident.
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4.The tribunal had directed the insurance company to pay the entire
compensation and recover 90% of the award amount from the owner of the
Bolero car. This award amount was put to challenge by the appellant insurance
company, contending that when there is no negligence on the part of the auto
driver, 10% composite negligence ought not to have been mulcted upon the
auto driver.
5.This Court after considering the submissions made on either side and
after perusal of the records, arrived at a finding that the tribunal has not given
any finding that the accident has taken place due to the negligence on the part of
the auto driver. However, 10% of composite negligence was fixed on the auto
driver on the sole ground of non-possession of a badge. After relying upon the
judgment of the Hon'ble Supreme Court reported in 2017 (14) SCC 663,
(Mukund Dewangan Vs. Oriental Insurance Company Limited), this Court
has held that non-possession of a badge for LMV vehicle cannot be considered
to be breach of policy conditions. In such circumstances, this Court has
proceeded to fix the entire liability upon the driver of the Bolero car. When the
negligence is solely attributable to the driver of the Bolero car, there is no
question of composite negligence or directing the insurance company to pay the
entire award amount and thereafter, recover 90% of the award amount from the
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owner of the Bolero car. Based upon the said findings, this Court had allowed
the appeal filed by the insurance company and completely exonerated the
insurance company.
6.The present review application has been filed by the claimant
contending that in the cases of composite negligence, the claimant would be
entitled to proceed as against any one of the tortfeasors for recovering the
compensation amount. In such circumstances, this Court had committed an error
apparent on the face of the record by exonerating the insurer of the auto.
7.Only when there are two tortfeasors, on the ground of composite
negligence, the claimant would be entitled to proceed as against anyone of the
tortfeasors. Even as per the findings of the tribunal, the accident has taken place
solely due to the negligence on the part of the driver of the Bolero car.
However, the tribunal has erroneously proceeded to fix 10% of the liability
upon the auto driver on the sole ground that the auto driver did not possess a
badge. When negligence is not attributable to the auto driver, this Court has
arrived at a finding that there is no composite negligence and the only
tortfeasor, is the driver of the Bolero car.
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8.In view of the above said findings, this Court has exonerated the insurer
of the auto and has mulcted the entire liability upon the owner of the Bolero car.
Therefore, the judgment of the Hon'ble Supreme Court reported in 2015 ACJ
1441 (Khenyei Vs. New India Assurance Company Limited and Others) is not
applicable to the facts of the present case.
9.The grounds raised in the review application clearly indicate that there
is no error apparent on the face of the record, but the entire appeal is being
re-argued on merits under the guise of review application. In such
circumstances, the ingredients under order 47 Rule 1 of C.P.C. have not been
satisfied and there are no merits in the review application. Accordingly, this
review application stands dismissed. No costs.
12.03.2025
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
RJR
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R.VIJAYAKUMAR, J.
RJR
Pre-delivery order made
in
in
12.03.2025
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