Madras High Court
The Branch Officer vs A.Hussaina Zakkir on 24 September, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
C.M.A.No.605 of 2021
and C.M.P.No.3681 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.09.2025
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
and
THE HONOURABLE MR. JUSTICE MUMMINENI SUDHEER KUMAR
C.M.A.No.605 of 2021
and
C.M.P.No.3681 of 2021
The Branch Officer,
The New India Assurance Co Ltd,
D.No.482-483, Iii Floor, Chamber Building,
Near Power House Bus Stop,
Cross Cut Road, Gandhipuram,
Coimbatore-641 012. .. Appellant
Vs.
1.A.Hussaina Zakkir
2.Minor Adnan Hussain
3.Minor Ayaana
4.C.M.Zackriah (Died)
5.Khurshid Begam
6.F. Amjathkhan
7.J. Kaleem
[R4 died R5 (already on record) is declared as
Lrs of the deceased R4 viz., C.M.Zackriah vide
order dated 07.12.2023 made in C.M.A.No.605
of 2025 by RSMJ & NSJ] .. Respondents
1/12
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C.M.A.No.605 of 2021
and C.M.P.No.3681 of 2021
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the Decree and Judgment passed in
M.C.O.P.No.640 of 2013 on 03.10.2019 on the file of the Learned Motor
Accident Claims Tribunal, Chief Judicial Magistrate, Coimbatore.
For Appellant : Mr.J.Chandran
For R1 to R5 : Mr.V.Udayakumar
For R6 & R7 : No appearance
JUDGMENT
[Order of the Court was made by Dr.G.JAYACHANDRAN., J.]
The Civil Miscellaneous Appeal has been filed by the Insurance
company against the award passed by the Motor Accident Claims Tribunal,
Coimbatore, in M.C.O.P.No.640 of 2013, dated 03.10.2019.
2. The brief facts, as narrated in the claim petition, are as below:-
On 29.02.2012, at about 8.30 a.m., when the husband of the first
claimant, Zakkir Hussain, was travelling in a car bearing Registration No.
TN 43 D 3579, along with others, from Mysore to Ooty. When the vehicle
reached near Mahadeshvara Petrol Bunk, Mysore-Nanjangud Main Road, it
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met with an accident. Zakkir Hussain sustained injuries to his chest and
forehead. He was initially admitted to Vidyaranya Hospital, Mysore and was
later shifted to St.Joseph's Hospital, Mysore. Despite treatment, he
succumbed to the injuries on 26.03.2012.
3. The claimants, being the wife, two minor children and parents
of the deceased Zakkir Hussain, filed a claim petition seeking
compensation. A claim for a sum of Rs.50,00,000/- was laid before the
Tribunal.
4. The Insurance Company took a specific stand that the records
collected by it indicated that the deceased, Zakkir Hussain, was in fact
driving the vehicle at the time of accident. It was further contended that the
insurance policy covered only the 'owner cum driver' and not a driver.
5. It was further contended that an earlier personal accident claim
had been made by the first claimant, wherein it was stated that Zakkir
Hussain had died in a motor accident while driving a car owned by one
Kaleem. However, on investigation, this claim was found to be false, since
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the final report revealed that the offending vehicle was a four-wheeler
bearing Registration No.TN 43 D 3579. It was further alleged that the
claimants had tampered with the records and had made a false averment that
the deceased was only a passenger and not the driver of the offending
vehicle. In view of these allegations it was submitted that a false claim had
been made and accordingly, the Insurance Company prayed for dismissal of
the claim petition.
6. In order to sustain the claim petition, the first claimant was
examined as PW.1, one Dr.N.Chandrashekar was examined as PW.2 and
Mr.Karthikeyan, Assistant in the Medical Records Department was
examined as PW.3. During the cross-examination of PW.1, 15 documents
were marked. The respondents also marked certain documents and few more
documents were introduced through the Assistant Manager of the Insurance
Company, who was examined as RW.1.
7. The trial Court, on appreciation of the oral and documentary
evidence, found that the final report filed by the police after investigation,
which was marked as Ex.P8, indicated that at the time of accident, the
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vehicle was being driven by one Amjath Khan (the 1st respondent in the
claim petition) and not by the deceased.
8. The vehicle owned by the 2nd respondent and insured with the
3rd respondent, i.e., Insurance Company. After considering the documents
filed to prove the income and earning capacity of the deceased, the Tribunal
awarded a total sum of Rs.19,60,000/- applying the formula laid down by
the Hon'ble Supreme Court in the case of National Insurance Company
Limited Vs. Pranay Sethi and Others [(2017) 16 SCC 680]. The
compensation amount was apportioned among the claimants as per the
manner stated in the claim petition.
9. In the appeal, it is contended that the Tribunal failed to properly
consider the contradiction in the claim petition with regard to the manner in
which the accident occurred, the identify of the vehicle involved in the
accident and the role of the deceased.
10. The learned counsel appearing for the appellant / Insurance
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Company, relying upon the intimation given by St.Joseph's Hospital
regarding the road accident which was marked as Ex.R2, submitted that the
said hospital, where the injured Zakkir Hussain was shifted from initial
treatment at Vidyaranya hosptial, Mysore, recorded in the column meant for
the alleged history of the road traffic accident that “he was driving the car
which hit a tree (from Mysore to Ooty near Nanjangud Main Road)”
11. The learned counsel further relied upon Ex.R4, another hospital
intimation purportedly issued by St.Joseph's Hospital on 03.09.2012 i.e.,
nearly six months after the death of the Zakkir Hussain. In this document,
under the column pertaining to the history of the road traffic accident, it is
stated that the deceased “travelling in the car” which hit a tree. It was
argued that both Ex.R2 (dated 26.03.2012) and Ex.R4 (dated 03.09.2012)
originated from the same hospital, there is a clear contradiction between the
two regarding the role of the deceased in the accident.
12. The learned counsel appearing for the Insurance
Company/appellant contended that this contradiction reveals a clear
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fabrication of records with respect to the role of the deceased in the
accident. It was argued that if Zakkir Hussain was the driver of the vehicle
and sustained injuries due to his own negligence, the insurance policy
would not cover such liability. Therefore, in order to over come the
ineligibility for compensation, the claimants have fabricated the records as
if that the deceased was merely a passenger in the vehicle at the time of
accident.
13. The learned counsel appearing for the claimants submitted that
the two documents relied upon by the Insurance Company, namely Ex.R2
and Ex.R4, were emanated from the custody of the Insurance Company and
marked during the cross examination of PW.1. However, neither the author
of the said document nor the person from whom they were obtained the
document was examined by the Insurance Company. Therefore, these two
documents namely Ex.R2 and Ex.R4 have no evidentiary value.
14. It was further submitted that the Tribunal rightly relied upon the
First Information Report and final report filed by the police after
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investigation, which clearly indicated that the deceased was a passenger in
the car at the time of the accident. Based on this, the Tribunal has held that
the claimants are entitled to compensation, since the passenger of the
injured vehicle is entitled to claim compensation under the Motor Vehicles
Act.
15. This Court, on considering the rival submissions and the
records, finds that when the legal heirs of the deceased Zakkir Hussain
initially made a claim for compensation, the Insurance Company rejected
the same, stating that there were discrepancies regarding the identity of the
vehicle involved in the accident and there was misrepresentation regarding
the driver at the time of accident. Subsequently, when the claim petition was
filed with a specific plea that the deceased, Zakkir Hussain, was a passenger
in the vehicle bearing Registration No.TN 43 D 3579, the Insurance
Company was unable to substantiate the stand it had previously taken while
rejecting the claim through its communication dated 01.11.2012, which was
marked as Ex.R12.
16. The documents marked during the cross examination of PW.1
by the Insurance Company cannot be taken into consideration for any
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evidentiary purpose, since the contents of these documents were neither
spoken to nor proved through the examination of their respective authors.
17. This Court finds that in the proof affidavit filed by the
Additional Manager of the 3rd respondent/Insurance Company, a specific
averment was made to the effect that the vehicle involved in the accident
was a two wheeler. However, during the course of arguments before the
Tribunal as well as before this Court, the 2nd respondent has conceded that
the vehicle involved was a four wheeler bearing Registration No.TN 43 D
3579. Even assuming such a concession had not been made, this facts now
established through the First Information Report (Ex.P7), the Final Report
(Ex.P8) and Motor Vehicle Inspector's report ( Ex.P10).
18. To consider the plea of the Insurance Company that the injured,
Zakkir Hussain, was driving the vehicle at the time of accident, this Court
finds that except for the entry in the police intimation allegedly issued by
St.Joseph's Hospital on 26.03.2012, which was created nearly one month
after the date of the accident, no credible or proven evidence has been
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produced. This document remains unsubstantiated and stands in
contradiction to the findings of the police investigation.
19. Therefore, on due consideration of the materials placed on
record and the findings of the Tribunal, this Court is of the view that there is
no merit in the appeal filed by the Insurance Company and the same is liable
to be dismissed.
20. Accordingly, this Civil Miscellaneous Appeal stands dismissed
with costs. Consequently, the connected Civil Miscellaneous Petition is
closed.
[Dr.G.J., J.] & [M.S.K., J.]
24.09.2025
Index : Yes/No
Internet : Yes/No
Speaking order/Non speaking order
rpl
To
The Motor Accident Claims Tribunal,
Chief Judicial Magistrate,
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Coimbatore.
Dr.G.JAYACHANDRAN., J.
and
MUMMINENI SUDHEER KUMAR., J.
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rpl
and
24.09.2025
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