← Library
Madras High CourtCMA/297/2022allowed

United India Insurance Company Ltd v. Uma

2022-04-13Honourable Ms. Justice P.T. Asha5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.04.2022

CORAM

THE HONOURABLE MS. JUSTICE P.T.ASHA C.M.A. No.297 of 2022 and C.M.P.No.2032 of 2022 United India Insurance Company Ltd., Divisional Office-4, 19-19/1-Floor, No.2, Sourth end Road, Basavangudi, Bangluru, Karnataka-560 004.

... Appellant/2nd Respondent Vs

1. Uma

2. Minor Sindhuja

3. Minor Kaviya (Minors 2 & 3 are rep. by their next friend/1st respondent/mother Uma)

4. Seerangai (4th respondent name amended as per order in I.A.No.157/2020, dated 22.01.2020)

5. Madaiyan ... Respondents/Petitioners

6. K.G.Shivaram ... Respondent/1st Respondent PRAYER: Petition filed under Section 173 of Motor Vehicle Act, against the award and decree dated 13-10-2020 made in M.C.O.P. No.208 of 2018 on the file of the Motor Accidents Claims Tribunal (Special District Court), Dharmapuri. For Petitioner : M/s.D.Bhaskaran For Respondents : Mr.M.Selvam for [R.1, R.4 & R.5, R.2 & R.3, Minors are rep. by R.1] : No Appearance [R.6] (Served)

J U D G E M E N T The 2nd respondent/insurance company has preferred this appeal challenging the award passed by the Motor Accident Claims Tribunal (Special District Court), Dharmapuri. in MCOP No.208 of 2018. The facts in brief necessary for disposing of this appeal are as follows:

2. On 25.01.2017 the deceased Ganapathi was proceeding in his Motor Cycle bearing Registration No. TN 29 AH 8128. When he neared the MGR Nagar Bus stop, Erranahalli, at 3.00 p.m the Honda City car bearing Registration No. KA 02 ML 3116 belonging to the 1st respondent and insured with the 2nd respondent came from the opposite direction. The car was driven in a rash and negligent manner and dashed against the two wheeler. The Said Ganapathi was seriously injured and was rushed to the Government Hospital Palacode. After giving the initial first aid he was transferred to the K.J. Hospital at Dharmapuri where he was treated as an inpatient and had to be shifted to the NIMHANS Hospital, Bangalore for further treatment where he remained as an inpatient till 25.10.2017. Once again he was brought back to the Government Mohan Kumaramangalam Medical College Hospital, Salem as an inpatient and there he passed away on 26.10.2017. The wife, children and mother of the said Ganapathi had filed MCOP No.208 of 2018 claiming compensation for his death.

3. It is their contention that he was running a hotel and earning a sum of Rs.50,000/- per month and was aged about 30 years. They had claimed a total compensation of Rs.50,00,000/-. The 1st respondent remained absent and was set ex parte. The 2nd respondent/ insurance company had contested the claim stating that the accident had occurred only on account of the negligent driving of the two wheeler and not the Honda City car as alleged by the claimants. The FIR was also registered only against the deceased and therefore, the insurance company was not liable to pay any compensation to the claimants. That apart, they had contended that the deceased did not possess a driving licence and also the two wheeler was not insured. Therefore, they had sought for the dismissal of the claim petition.

4. The Tribunal below relying solely on the evidence of P.W.2 and P.W.3 who claimed to be the eye witnesses, came to the conclusion that it was only on account of the negligence of the driver of the 1st respondent's car that the accident had taken place. The Tribunal thereafter proceeded to award a sum of Rs.19,64,200/- to the appellants. The insurance company is aggrieved by the fact that the Tribunal has failed to consider the evidence of R.W.1, the Sub Inspector of Palacode police station who had adduced evidence about the FIR and the fact that

the deceased was responsible for the accident. Ex.R.1 which was a final report had also not been considered by the Tribunal below.

5. The learned counsel relied upon the sketch which formed part of Ex.R.1 but was not marked separately which shows that the deceased who was riding the Motor Cycle on the left side of the road had turned right and entered the right side of the road and the accident has taken place in the middle of the road and the sketch clearly shows that the accident had occurred only on account of the negligence of the deceased Ganapathi. The counsel would further submit that the witnesses P.W.2 and P.W.3 are relatives of the deceased and it is rather surprising that both of them were available at the bus stand at the very same time when the deceased Ganapathi had met with the accident but none of the two had however given the FIR. Therefore, the Tribunal has failed to take note of the fact that the evidence appears to be an interested evidence.

6. Mr. D.Bhaskar would further submit that FIR has been lodged only against the deceased. The deceased did not possesses an effective driving license and he did not have a valid and subsisting insurance policy for the vehicle. He would submit that the negligence has to be mulcted on the deceased Ganapathi. As he has also contributed to the accident contributory negligence should be fixed on him as well.

7. Per contra, Mr.M. Selvam, learned counsel appearing on behalf of the claimants would submit that the FIR has been given by the driver of the Honda City Car and was therefore a fabricated narration of the accident. The driver has deliberately shown negligence only upon the deceased motorbike rider. He would further submit that the Tribunal has rightly taken note of the evidence of the eye witnesses of the accident and the evidence of the witnesses have not been shaken by the respondent. Therefore, he would submit that the award has to be sustained.

8. Heard the learned counsels and perused the records.

9. The sketch which was produced by the learned counsel for the appellant/ insurance company and which has been admitted by the counsel for the respondent clearly shows that the deceased has turned right and got into the middle of the right hand side of the road where the accident had taken palce. The deceased was proceeding from south to north and therefore had to keep to the left side of the road. The Honda City car on the other hand was driven from north to south and was therefore travelling on the right hand side of the road. This sketch would clearly show that the deceased has been negligent and has contributed to the

accident. As rightly pointed out by the counsel for the insurance company P.W.2 and P.W.3 who have adduced evidence as the eye witnesses to the accident have neither lodged the FIR nor had they accompanied the deceased to the Hospital. The two appear to be witnesses who have been planted for the sake of buttressing the claim that the accident was the result of the rash and negligent driving of the Honda City car.

10. The insurance company had examined the Investigating Officer who has stated that the FIR and the sketch would show that the negligence on the part of the deceased and Ex.R.1 would show that the investigation has been closed only on account of the death of the deceased Ganapathi. Though the Tribunal has made a reference to the said evidence, however, the Tribunal has chosen to ignore the statement made by the Special Sub Inspector and relied totally on the interested evidence of P.w.2 and P.w.3. The sketch clearly shows that the deceased Ganapathi has contributed for the accident.

11. Further, the claimants by making the FIR on their side has tacitly admitted the veracity of the same. Further they have not filed any objection to the manner in which the accident has been described to have taken place in the FIR and as the negligence being held only against the deceased Ganapathi in the FIR. Therefore, due weightage has to be given to the FIR marked as Ex.P.1. However, it has to be taken note that the accident happened at 3 P.M. therefore, it has taken place in broad day light. The driver of the Honda City Car should have driven the car in full speed rashly and negligently as otherwise he would have noticed the deceased and could have applied the brakes and avoided the accident. Therefore, the driver of the car has also contributed to the accident.

The negligence on the part of the deceased Ganapathi can be fixed at 40% and 60% on the driver of the Honda City car. Therefore, the award is modified to the extent of mulcting the deceased Ganapathi with 40% contributory negligence, with reference to the quantum of compensation there is no modification. However, the petitioners would now be entitled to only a sum of Rs.11,78,520/- being the 60% contributory negligence on the respondent.

12. Therefore, the above Civil Miscellaneous Application is allowed and the award amount payable by the appellant/2nd respondent is reduced from Rs.19,64,200/- to Rs.11,78,520/-. The insurance company is directed to deposit the entire amount payable by them within a period of 6 weeks from the date of receipt of the copy of the Judgment. The major claimants are permitted to withdraw their proportion of the award amount as fixed by the Tribunal below. The minor's share shall be invested in a fixed deposit in any nationalised bank until they gain

majority. The 1st claimant shall be permitted to withdraw the interest on minor's deposit quarterly. No costs. Consequently, connected Miscellaneous Petition is closed.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar shr To

1. The Motor Accidents Claims Tribunal (Special District Court), Dharmapuri.

2. The Section Officer, V.R.Section, Madras High Court.

+1cc to Mr.M.Selvam, Advocate, S.R.No.25662 +1cc to Mr.D.Bhaskaran, Advocate, S.R.No.25596 C.M.A. No.297 of 2022 and C.M.P.No.2032 of 2022 SR-II(CO) SU(07/06/2022)