S. Kannan v. Royal Sundaram Alliance Insurance Company Limited

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 20/2/2012CORAMTHE HONOURABLE MR.JUSTICE R.SUBBIAHC.M.A(MD)NO.43 of 2008andM.P.(MD)No.1 of 2012Royal Sundaram Alliance Insurance Company Limitedrep. Through its Branch Manager46 Whites RoadChennai.... Appellant/Respondent 3Vs1. R. Banumathi2. Minor R.Munnodi Raja3. Minor R.Kaladevi...Respondents 1 to 3/Petitioners (Minors are rep. by their Mother 1st Respondent)4. S. Kannan5. P. Kalimuthu...4 & 5th Respondents/Respondent 1 & 2PRAYER : Civil Miscellaneous Appeal is filed against the fair anddecreetal order dated 25.7.2007 made in M.C.O.P.No.40 of 2005 on the fileof the Motor Accident Claims (Principal District Judge), Srivilliputhur. For Appellant: Mr.S.Srinivasa Raghavan For Respondents 1 to 3: Mr.M.Jothi Basu. J U D G M E N TThis appeal is filed by the appellant-Insurance Company challengingthe award dated 25/7/2007 made in M.C.O.P.No.40 of 2005 on the file ofthe Motor Accidents Claims Tribunal (Principal District Judge),Srivilliputhur.2. The brief facts which are necessary to decide the issue involvedin the appeal are as follows:(i). The first respondent herein is the wife of the deceased. Therespondents 2 and 3 are the minor children of the first respondent anddeceased. (ii). It is the case of the respondents 1 to 3/claimants before theTribunal that on 2/10/2004, when the deceased was proceeding in TN67W-5088 along with another person viz., Vairamuthu, from Sivakasi toThiruvannamalai Temple, an auto rickshaw bearing Registration No.TN67R-8132 was going in front of the said two wheeler and at that time, a twowheeler bearing Registration No.TN67Q-2342 was coming in the oppositedirection. The deceased, while he was overtaking the autorickshaw goingahead of him was hit by the two-wheeler bearing Registration No.TN67Q-2342, which was coming in the opposite direction from west to east andwhen the deceased tried to apply break, it has resulted in skidding andswerving of the two wheeler and in that process, the deceased dashed https://hcservices.ecourts.gov.in/hcservices/ 2against the side box of the two wheeler bearing Registration No.TN67Q-2342 which was coming from opposite direction. In the said accident, thedeceased got wounded severely in his head and other parts of his body.Subsequently, the deceased was taken to the hospital, where he wasdeclared to have been brought dead. Hence, the respondents 1 to 3 madea claim as against the owner of the two wheeler bearing RegistrationNo.TN67Q-2342 and the insurer, the appellant herein. 3. The case of the respondents/claimants was resisted by theInsurance Company by taking a specific defence that the manner of theaccident described in the claim petition is not correct and the accidenthad occurred only due to the rash and negligent act of the deceased.Therefore, no negligence could be fixed on the part of the insuredvehicle and as such the insurance company is not liable to pay anycompensation to the respondents 1 to 3 herein. The claim was made, by theRespondents herein implicating the insured vehicle falsely only in orderto get the compensation from the Insurance Company and thus, theappellant insurance company prayed for the dismissal of the claimpetition.4. In order to prove the claim on the side of the firstrespondent/claimant, the first respondent examined herself as P.W.1,besides examining the pillion rider of the two wheeler viz., Vairamuthuas P.W.2 and five documents were marked as Exs.P1 to P5. On the side ofthe appellant-Insurance Company, three witnesses were examined as R.W.1to R.W.3 and five documents were marked as Exs.R.1 to R.5. The Tribunalafter analysing the entire evidence, has come to the conclusion that theaccident had accured due to the rash and negligent driving of the twowheeler bearing Registration No.TN67Q-2342 insured with theappellant/Insurance Company and thus directed the appellant/InsuranceCompany to pay the compensation amount arrived by it. Aggrieved over thesame, the present appeal has been filed. 5. The learned counsel for the appellant-Insurance Companysubmitted that from the reading of the claim petition by itself wouldshow that the accident had occurred only when the deceased attempted toovertake the autorickshaw without sounding the horn and without givingany proper signal and also not following the traffic rules, in a rash andnegligent manner. Moreover, on the side of the appellant, the rider ofthe insured vehicle was examined as R.W.1 and a criminal case was filedagainst the rider of the insured vehicle which also ended in acquittal.Hence by considering all these aspects, the Tribunal ought to havedismissed the claim petition in toto.6. Keeping the submissions made by the learned counsel appearing oneither side I have perused the materials available on record. 7. It is the main submission of the learned counsel for theappellant that in the claim petition, it has been clearly stated that atthe time of the accident, the victim was making an attempt to overtakethe autorickshaw and hence based on the said statement, the Tribunalought to have come to the conclusion that the accident had occurred dueto the rash and negligent act of the deceased alone. Moreover, on theside of the appellant/Insurance Company, the criminal Court's judgmentwas marked as Ex.R.3 to prove that the rider of the insured vehicle was https://hcservices.ecourts.gov.in/hcservices/ 3acquitted by the Criminal Court. Further, the deposition of the pillionrider recorded before the Criminal Court was marked as Ex.R.1. Acombined reading of Exs.R.1 and R.3 and the statement made in the claimpetition would show that the rider of the insured vehicle is not at faultin causing the accident. Thus, the learned counsel for the appellantsubmitted that by considering all these aspects, claim petition ought tohave been dismissed, but I am not inclined to accept the said submissionof the learned counsel for the appellant for the reason that the CriminalCourt proceedings cannot have any bearing over the proceedings before theMotor Accident Claims Tribunal. Before the Motor Accident ClaimsTribunal, the appellant ought to have proved the case by examiningindependent witnesses. Though the learned counsel for the appellantsubmitted that the accident had occurred when the deceased made anattempt to overtake an autorickshaw, the crucial document such asaccident plan was not marked in this case. Moreover, no favourable replyto the case of the appellant/Insurance Company was brought out and incross-examination of P.W.2. Under such circumstances, I do not find anyinfirmity in the conclusion arrived at by the claim based on the evidenceof R.W.2 that the accident is the result of the insured vehicle alone.8. In my considered opinion, the appellant has not establishedtheir defence with tangible evidence. Since it has been stated in theclaim petition at the time of accident, the deceased was making anattempt to overtake an auto, it does not mean that the accident hadoccurred only due to the negligent act of the deceased. Therefore, I amnot inclined to accept the submissions made by the learned counsel forthe appellant based on the statement made in the claim petition. I donot find any infirmity in the findings rendered by the trial Court andaccordingly, this Appeal stands dismissed. 9. In view of the above, the appellant/Insurance company isdirected to deposit the entire amount with accrued interest within aperiod of six weeks from the date of receipt of a copy this order. Onsuch deposits being made, the first respondent is permitted to withdrawher respective shares with the proportionate interest. So far as, thesecond and third respondents are concerned, the Tribunal is directed todeposit the same in any one of the Nationalized Bank till the minorappellants attains majority. The mother of the minors are permitted towithdraw the accrued interest on the said deposit once in three months.Sd/-Assistant Registrar (Records)/ True Copy / Sub Assistant Registrar ToThe Motor Accident Claims Tribunal, (Principal District Judge), Srivilliputhur.+1CC TO MR.S.SRINIVASARAGHAVAN, ADVOCATE SR : 5078+1CC TO MR.M.JOTHIBASU, ADVOCATE SR : 5388MvsSR : 30.03.2012 : 3p/4cC.M.A(MD)NO.43 of 200820/2/2012