Madras High Court
M/S. Cholamandalam General Insurance ... vs Mr. K.Kumar on 7 May, 2020
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
1 CMA Sr Nos. 38186 /2019, 38187/2019
CMA Sr 38189 /2019,CMA Sr 38188 /2019
& CMA Sr 38185/2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.05.2020
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
CMA Sr Nos. 38186 of 2019, CMA Sr 38187 of 2019 , CMA Sr 38189 of 2019 ,
CMA Sr 38188 of 2019 & CMA Sr No.38185 of 2019
M/s. Cholamandalam General Insurance Company Limited
Legal Department,
Shaw Wallace Builing,
No.154, Thambu Chetty Street,
Chennai – 600001. …. Appellant / 4th Respondent
Vs..
Mr. K.Kumar
1st Respondent / Petitioner in
MCOP No. 168 of 2015
Mr. M. Shanmugam
1st Respondent / Petitioner in
MCOP No. 167 of 2015
Ms. Mallika
Mr. K.Madhavan
Ms. Sathiya
Respondents1,2and 3 /Petitioners
1,2 and 3 in MCOP No. 198 of 2014
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2 CMA Sr Nos. 38186 /2019, 38187/2019
CMA Sr 38189 /2019,CMA Sr 38188 /2019
& CMA Sr 38185/2019
Ms. Kannammal
Mr. S.Paranthaman
Mr.Venkatesan
Respondents1,2 and 3 /Petitioners
1,2 and 3 in MCOP No. 199 of 2014
Ms. P. Rajammal
.. 1 Respondent / Petitioner in
MCOP No. 446 of 2015
Ms. P.Rajamani
M/s.The Oriental Insurance Company Limited, Dharmapuri.
Mr. Manikandan
…Respondents/
Respondents in all 1st,
2nd & 3rd in all MCOP’s
Common Prayer: - These Civil Miscellaneous Appeals are filed under Section 173 of
The Motor Vehicles Act, 1988, against the common order dated 28.09.2018 made in
MCOP No. 168 of 2015 , MCOP No. 167 of 2015, MCOP No. 198 of 2014, MCOP
No. 199 of 2014 & MCOP No. 446 of 2015 on the file of the Motor Accidents Claims
Tribunal, Special District Court, Krishnagiri
For Appellant : Mr. Vijayaraghavan N for R2
COMMON ORDER
These five appeals have been filed by M/s. Cholamandalam General Insurance Company Ltd. (“Cholamandalam Insurance Co.”), against the common award dated 28.09.2018, on the file Special District Court for Motor Accident Claims, Krishagiri, as per table below: -
http://www.judis.nic.in 2/8 3 CMA Sr Nos. 38186 /2019, 38187/2019 CMA Sr 38189 /2019,CMA Sr 38188 /2019 & CMA Sr 38185/2019 Appeal No MACT. MCOP No Being 50% of award amount CMA SR NO Krishnagiri 198/2014, Rs.2,45,000/-
38189/2019 CMA SR NO Krishnagiri 199/2014 Rs.6,43,400/- 38188/2019 CMA SR NO Krishnagiri 167/2015 Rs.2,02,000/- 38187/2019 CMA SR NO Krishnagiri 168/2015 Rs.1,38,000/- 38186/2019 CMA SR NO Krishnagiri 446/2015 Rs.2,86,500/- 38185/2019
2.The above appeals came to be filed in respect of an award arising out of the accident dated 09.05.2014 involving a lorry bearing Registration No. KA 01 D 1092 insured by the appellant and a tourist bus bearing Registration No.TN 23 AH 6666 insured with M/s. Oriental Insurance Company Ltd. (“Oriental Insurance Co.”). The victims being 2 deceased persons and 3 injured, filed the claims against both Cholamandalam Insurance Co. and Oriental Insurance Co. In fact, originally the claims were filed alleging negligence on the part of the driver of the bus insured with Oriental Insurance Co. alone, since FIR & Charge Sheet were against the said bus driver.
3.However, in the case where Oriental Insurance Co. disputed liability on the ground that the cheque for premium for the policy of insurance, was dishonoured, and therefore prayed for exoneration, the owner & insurer of the lorry bearing Registration No. KA 01 D 1092 were impleaded and relief was sought against the all the respondents, in the five claim petitions.
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4.Oriental Insurance Co. adduced evidence that the policy of insurance was cancelled by them, and that, as such they were not liable. Cholamandalam Insurance Co. adduced evidence that the FIR and Charge Sheet were against the driver of the vehicle insured by Oriental Insurance Co. Based on the evidence, the tribunal exonerated Oriental Insurance Co., since it found that the policy of insurance was cancelled, and as such there was no coverage for the said tourist bus.
5.On negligence, since the five claimants were passengers in the tourist bus insured with Oriental Insurance Co., the tribunal considered it as composite negligence of the drivers of both vehicles. However, to avoid multiplicity of proceedings, the tribunal apportioned negligence at 50:50 on the two drivers.
6.Cholamandalam Insurance Co. has filed the five appeals on the ground that the 50% liability fixed on them is not correct, since the FIR and Charge Sheet were only against the driver of the vehicle insured by Oriental Insurance Co. No serious dispute can be raised by the appellant, on the amounts awarded, since they are all found to be fair and just.
7.Insofar as the finding on negligence is concerned, it is clear and obvious that the victims were passengers of the vehicle insured by Oriental Insurance Co. If so, they did not and could not have had any hand in the accident. As far as the victims are concerned , it would be a case of composite negligence, and they can therefore, pursue the claims against both the drivers or any one of them, as they deemed fit in the circumstances of the case. Irrespective of the fact that the FIR and Charge Sheet were http://www.judis.nic.in 4/8 5 CMA Sr Nos. 38186 /2019, 38187/2019 CMA Sr 38189 /2019,CMA Sr 38188 /2019 & CMA Sr 38185/2019 only against driver of the vehicle insured by Oriental Insurance Co, the victims are entitled to file claims against both the drivers or any one of them, as they were advised.
8.It is settled law vide the judgement in State of Tamil Nadu Vs P.K. Anandhan reported in 1982 ACJ 358 (Mad)(DB) following a judgement in K. Gopalakrishnan Vs Sankaranarayanan reported in 1969 ACJ 34 (MAD)(DB), where it has been held that the option to sue both drivers or only one of them, was with the victims. If so, the claims filed against both drivers and parties are in order.
9.As for the principle of composite negligence , the debate has now been concluded in the judgment of the Hon’ble Supreme Court in Khenyei Vs New India Assurance Co. Ltd, reported in 2016 (9) (SCC) 273. The Apex Court has categorically ruled that in such cases of composite negligence, the claimants can choose to proceed either against both the drivers or any one of them. More so, to protect victims, in such cases as the present one, where the insurer of the tourist bus i.e. Oriental Insurance Co., has been exonerated. The interest of the victim has thus been protected by this principle and legal position.
10.Hence, the impleading of Cholamandalam Insurance Co. by the victims is in order. Cholamandalam Insurance Co. has not examined the driver of the lorry that has been insured by it. Necessarily, therefore, adverse inference shall be drawn against the said driver. The principle of law for instance in Oriental Fire and General Insurance Co. Ltd. Vs Ram Sunder Dubey reported in AIR 1982 All 198 is good law http://www.judis.nic.in 5/8 6 CMA Sr Nos. 38186 /2019, 38187/2019 CMA Sr 38189 /2019,CMA Sr 38188 /2019 & CMA Sr 38185/2019 Pan India. The tribunal cannot be faulted for its finding on negligence. In fact, Cholamandalam Insurance Co. is not prejudiced at all, since the Tribunal has apportioned only 50% liability on them. This has been done to avoid multiplicity of proceeding to avoid inter se liability. Thus, the finding on negligence in the common award, is factually and legally unexceptionable. Cholamandalam Insurance Co. cannot dispute the 50% liability imposed on them, in a case of composite negligence, and where the lorry driver did not present himself in the witness box. Hence, for these reasons, there is no merit in any of the five appeals filed by the insurer. They deserve to be dismissed and accordingly, are hereby dismissed.
11.Coming to quantum, for the record, the counsel for the appellant correctly and fairly did not address any challenge. All the five awards are found to be very reasonable and only 50% of the same is fastened on the appellant insurance company, as the balance 50% has been correctly imposed on the owner of the bus bearing Registration No. TN 23 AH 6666, since Oriental Insurance Co., as insurer of the said bus was exonerated from liability. The said finding on negligence at 50:50, thus, is beyond dispute and challenge.
12.In the result, all the five appeals filed by the insurer stand rejected as unsustainable. It is fortunately found that the insurer has deposited entire amounts, in all the five cases, in the wake of execution petitions. Thus, nothing survives in these appeals.
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13.Accordingly, the claimants would be at liberty to withdraw the amounts lying to the credit of the claim petitions. The appeals stand disposed of in terms of this order. There shall be no orders as to costs in these appeals.
07.05.2020 Index: Yes / No Internet: Yes / No KP To
1.Motor Accidents Claims Tribunal, Special District Court, Krishnagiri
2.Mr. Vijayaraghavan N Mail Id: [email protected] N.ANAND VENKATESH.,J http://www.judis.nic.in 7/8 8 CMA Sr Nos. 38186 /2019, 38187/2019 CMA Sr 38189 /2019,CMA Sr 38188 /2019 & CMA Sr 38185/2019 KP CMA Sr Nos.38186 of 2019, CMA Sr 38187 of 2019, CMA Sr 38189 of 2019, CMA Sr 38188 of 2019 & CMA Sr 38185 of 2019 07.05.2020 http://www.judis.nic.in 8/8