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Madras High CourtCMA/935/2014dismissed

The Icici Lombard v. Vengammal

2021-04-21Honourable Mr Justice G.K. Ilanthiraiyan4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.04.2021

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN C.M.A.No.935 of 2014 M.P.No.1 of 2014 M/s. ICICI Lombard General Insurance Company Ltd., Gowley Brown Road, R.S.Puram, Coimbatore.

..Appellant/2nd Respondent Vs.

1. Vengammal

2. Minor Murugan

3. Minor Sathiya

4. Angammal (Minor Rep. By mother & guardian first respondent herein) ... Respondent 1 to 4/Petitioners

5. Venkatesh ...5th Respondent/1st Respondent

6. K.Kalaiselvan ...6th Respondent/3rd Respondent

7. United India Insurance Co. Ltd., Branch Office, Nethaji Bye Pass Road, Dharmapuri.

(Respondents 5& 6 are set exparte in lower Court) ...7th Respondent/4th Respondent Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 05.01.2011 in M.C.O.P.No.818 of 2008 on the file of the Motor Accident Claims Tribunal, Additional District Judge(Fast Track Court), Dharmapuri.

For Appellant :: Mrs.R.Sreevidhya For Respondent :: Notice Served - R4, R7 Ex-parte - R5 & R6 Mr.M.Selvam for R1 R2 & R3 minors rep. By R1

JUDGMENT

This appeal has been laid as against the judgment and decree dated 05.01.2011 made in M.C.O.P.No.818 of 2008 on the file of the Motor Accident Claims Tribunal, Additional District Judge(Fast Track Court), Dharmapuri, thereby awarded the compensation to the tune of Rs.4,59,000/-.

2.

For the sake of convenience, the parties are referred to hereunder according to their litigative status before the Tribunal.

3.

The case of the claimant is that on 04.03.2008 when the deceased was riding his motorcycle to purchase the spare parts for the JCB from Harur to Adikarapatti near Pudhupatty Bridge, the driver of the TATA ACE owned by the first respondent, had driven in a reckless manner and dashed against the deceased. Due to the impact, the deceased sustained grievous injuries and immediately he was taken to Harur Government Hospital. Thereafter, he was taken to Salem Kumaramangalam Medical College Government Hospital for better treatment. Inspite of better treatment, he died on 10.03.2008. At the time of accident, the deceased was only 34 years and he was a lorry driver and he was earning Rs.10,000/- per month.

4. Resisting the same, the second respondent filed counter stating that only due to the rash and negligent driving of the vehicle by the deceased, the accident had occurred and as such, the second respondent, being the insurer of the first respondent's vehicle is not liable to pay any compensation as claimed by the claimants. Further it is stated that the complaint was lodged by the wife of the deceased and the FIR was registered, that too, against the deceased. Since his death, the entire charges had abated. Therefore, the second respondent is not liable to pay any compensation.

5. On the side of the claimants, they examined P.W.1 and P.W.2 and marked Ex.P.1 to Ex.P.11. On the side of the second respondent, they examined R.W.1 to R.W.3 and marked Ex.R.1 to Ex.R3. On the basis of the evidence available on record and also considering the submission made by the learned counsel appearing on either side, the Tribunal fastened the liability on the second respondent and awarded a sum of Rs.4,59,000/- as

compensation payable by the second respondent. Aggrieved by the same, the second respondent/Insurance Company came forward with the present appeal questioning the liability.

6. The learned counsel appearing for the appellant would submit that the accident took place on 04.03.2008 whereas the complaint was lodged only on 11.03.2008 and there is no explanation for the belated complaint. In fact, based on the complaint lodged by the wife of the deceased, the concerned police officials registered a case against the deceased. Since he died, the entire charges had abated and as such the appellant is not liable to pay any compensation.

7. Heard Mrs.R.Sreevidhya, learned counsel appearing for the Insurance Company/appellant and Mr.M.Selvam, learned counsel appearing for the claimants.

8. On perusal of the award passed by the Tribunal, it is found that the deceased was riding a motorcycle on 04.03.2008. At that time, a TATA ACE belonging to the first respondent insured with the second respondent was driven in a rash and negligent manner and dashed against the deceased due to which he sustained grievous injuries and immediately he was taken to Government Hospital at Harur. Thereafter, he was referred to Salem Kumaramangalam Medical College Government Hospital for better treatment. Unfortunately, the treatment failed and he died on 10.03.2008. Till 10.03.2008, no complaint was lodged as against the driver of TATA ACE.

In fact after receiving the accident register from the Harur Government Hospital, the Inspector of Police, Adikarapatti Police Station, Dharmapuri District did not register any case as against the first respondent's driver. After the death of the deceased, only on 11.03.2008, the wife of the deceased lodged a complaint in respect of the accident. Only, thereafter the Inspector of Police, Adikarapatti Police Station, Dharmapuri District registered a case in Cr.No.109 of 2008 for the offences under Sections 304 (A) IPC against the deceased. Unfortunately, the Inspector of Police did not even enquire the driver of the first respondent's vehicle and also the deceased was charge-sheeted as if he hit the bridge and fell down on the vehicle owned by the first respondent which was parked on the road.

Since the charge sheet was laid as against the deceased person, entire charges had abated.

accident took place only due to the rash and negligent driving of the first respondent's driver and awarded compensation and fastened the liability on the first and second respondents. Hence, this Court finds no merit in this case.

9. In the result the Civil Miscellaneous Appeal is dismissed. Consequently, connected Miscellaneous Petition is closed. No Costs. The appellant/Insurance Company is directed to deposit the total compensation of Rs.4,59,000/- with accrued interest and costs as determined at by the Tribunal, within a period of six weeks from the date of receipt of a copy of this judgment, after adjusting the amount, if any, already deposited. On such deposit, the respondents 1 to 4/claimants are permitted to withdraw in accordance with law, less the amount if any already withdrawn by them.

Sd/- Assistant Registrar (CS-VII) // True Copy // Sub Assistant Registrar dh To 1.The Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court, Dharmapuri.

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

+1CC to M/s.M.Selvam, Advocate, SR.No. 24429 +1CC to M/s.R.Sree vidhya, Advocate, SR.No. 24646 C.M.A.No.935 of 2014 GMI(CO) B.VC (17/09/2021)