Madras High Court
United India Insurance Co. Ltd vs K.Shanthakumar on 31 July, 2014
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 31.07.2014 Coram The Honourable Mr.Justice R.SUBBIAH C.M.A.No.422 of 2014 and M.P.Nos.1 & 2 of 2014 United India Insurance Co. Ltd., No.134, Greams Road, Chennai-600 006. ..Appellant ..vs.. 1.K.Shanthakumar 2.S.Thirunavukarasu ..Respondents Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree, dated 12.08.2013, made in M.C.O.P.No.123 of 2011 on the file of the Motor Accidents Claims Tribunal (III Small Causes Court), Chennai. For Appellant : Mr.C.Paranthaman For Respondents : Mr.K.varadha Kamaraj JUDGMENT
This appeal has been filed by the Insurance Company challenging the award dated 12.08.2013 passed in M.C.O.P.No.123 of 2011 on the file of the Motor Accident Claims Tribunal (Small Causes Court-III), Chennai.
2.The 2nd respondent herein is the claimant before the Tribunal and he filed a claim petition claiming a sum of Rs.3 lakhs for the injuries sustained by him in the accident that had occurred on 25.11.2010 involving the vehicle insured with the appellant herein/Insurance Company.
3.It is the case of the claimant before the Tribunal that on 25.11.2010 at about 19.00 hours, while he was proceeding in his two-wheeler bearing Registration No.TN-01-AL-9824, at 3rd main road in Ambattur Estate near Telephone Exchange, an auto bearing Registration No.TN-20-BS-0157 driven by its driver in a rash and negligent manner, came from the opposite direction, entered into the wrong side of the road and dashed against the two-wheeler, as a result of which, the claimant was thrown away from the two-wheeler. In the accident, the claimant sustained grievous injuries. Hence, he made a claim for a sum of Rs.3 lakhs as against the owner of the auto and Insurance Company.
4.The claim made by the claimant was resisted by the Insurance Company by taking a defence that the accident had occurred only due to the rash and negligent driving of the rider of the two-wheeler viz, the claimant. Further, the First Information Report has also been registered only as against the claimant and on completion of investigation, charge-sheet has also been filed against the claimant under Section 279 & 338 IPC, for the injuries caused by him to one Mrs.Rathanammal, who travelled in the auto bearing Registration No.TN-20-BS-0157. The claimant himself is a tortfeasor. Thus, the Insurance Company prayed for the dismissal of the claim petition filed by the claimant.
5.In order to prove their defence, on the side of the Insurance Company, the Sub-Inspector of Police was examined as R.W.1, who has stated in his evidence that the two-wheeler bearing Registration No.TN-01-AL-9824 dashed against the auto bearing Registration No.TN-20-BS-0157, as a result of which, the said auto capsized and one Mrs.Rathinammal, who travelled in the auto, sustained grievous injuries; on receipt of the complaint from the driver of the auto, a case was registered and on completion of investigation, charge-sheet was filed against the claimant/1st respondent herein. According to the Insurance Company, though it was established by them before the Tribunal that the accident had occurred only due to the rash and negligent act of the claimant/1st respondent herein, the Tribunal has awarded compensation of Rs.45,100/- to the claimant, on a finding that as the claim petition was filed under Section 163A of the Motor Vehicles Act, there is no need to discuss the rash and negligent aspect. Hence, the award passed by the Tribunal is liable to be set aside.
6.Heard the submissions made on either side and perused the materials available on record.
7.From a perusal of the materials available on records, this Court finds that the Insurance Company has established their defence before the Tribunal, by examining the Sub-Inspector as R.W.1, that the accident had occurred only due to the rash and negligent act of the claimant. In fact, on completion of investigation, the Police had filed charge-sheet only as against the claimant. Further more, in the accident, due to the rash and negligent act of the claimant, one Mrs.Rathinammal had also sustained grievous injuries. Though it was established by the Insurance Company that the accident had occurred only due to the rash and negligent act of the claimant, the Tribunal has observed that as the claim petition has been filed under Section 163A of the Motor Vehicles Act, it is not necessary to discuss about the rash and negligent act of the drivers. Based on such a finding, the Tribunal made the calculation under different heads and passed an award for a sum of Rs.45,100/- as compensation.
8.But, it is pertinent to note that the claimant himself is a tortfeasor. So far as Section 163A of MV Act is concerned, if an application is filed by a third party, the Tribunal can award compensation on structured formula, without going into the aspects of wrongful act, neglect, default of the owner/driver of the vehicle or vehicles concerned or of any other person. But, awarding compensation without discussing the rash and negligence, cannot be made applicable to the case, where the claim is made by the tortfeasor, who had caused the accident. Therefore, in the considered opinion of this Court, in the instant case, the compensation amount awarded by the Tribunal on a finding that since the claim petition has been filed under Section 163A of the Motor Vehicles Act, the claimant is entitled for compensation as per structured formula, is not correct. At the maximum, the claimant is entitled for compensation under no fault liability under Section 140 of the Motor Vehicles Act. Hence, the compensation amount of Rs Rs. 45,100/- awarded by the Tribunal is hereby reduced to Rs.25,000/- under no fault liability.
9.Accordingly, the appeal is allowed in part. The appellant/Insurance Company is directed to deposit the modified award amount of Rs.25,000/-, with proportion interest at 7.5% per annum, from the date of petition till the date of deposit, to the credit of the above said MCOP, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the same, by making necessary application before the Tribunal.
Consequently, connected Miscellaneous Petitions are closed. No costs.
31.07.2014
Internet: Yes / No
Index : Yes / No
ssv
Copy to
1.The Judge-III,
Small Causes Court,
(Motor Accidents Claims Tribunal),
Chennai.
R.SUBBIAH, J.,
ssv
Pre-delivery judgment
in
C.M.A.No.422 of 2014
and
M.P.Nos.1 & 2 of 2014
31.07.2014