Madras High Court
The National Insurance Company Ltd vs Mahalakshmi on 13 February, 2014
C.M.A.(MD)No.1193 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 28.10.2021
Delivered On : 26.11.2021
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.M.A.(MD)No.1193 of 2016
and
C.M.P.(MD)No.10509 of 2016
The National Insurance Company Ltd.,
Thanjavur,
Rep. By its Regional Manager. ..Appellant
Vs.
1.Mahalakshmi
2.Minor Deepa Sundari
(Rep. By mother and first respondent)
3.Solaimuthu
4.Kanagam
5.Asokan
6.Senthamizhvendan
7.The New India Assurance Co. Ltd.,
Thanjavur,
Rep. By its Branch Manager,
8.Elangovan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the fair and decreetal order dated 13.02.2014 and
made in M.C.O.P.No.198 of 2012 on the file of the Motor Accident Claims (Special
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https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.1193 of 2016
District Judge), Thanjavur.
For Appellant : Mr.S.Srinivasa Raghavan
For Respondents 1 to 4 : Mr.G.Karnan
For 7th Respondent : Mr.S.Lakshmanan
For Respondents 5, 6 and 8 : No Appearance
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award passed in M.C.O.P.No.198 of 2012 dated 13.02.2014, on the file of the Motor Accident Claims Tribunal, Special District Judge, Thanjavur.
2.The appellant herein is the 4th respondent, the respondents 1 to 5 herein are the claimants, the respondents 6 and 7 herein are the respondents 1 and 2 and the 8th respondent herein is the 3rd respondent in the claim petition. The respondents 1 to 5 herein have filed a claim petition in M.C.O.P.No.198 of 2012, claiming compensation for the death of one Selva Ananth, in an accident that took place on 16.06.2011. The Tribunal has awarded a sum of Rs.18,91,176/- (Rupees Eighteen Lakhs Ninety One Thousand One Hundred and Seventy Six only) as compensation. Against which, the appellant has preferred this appeal.
3.Brief substance of the claim petition in M.C.O.P.No.198 of 2012 is as follows:
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https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1193 of 2016 On 16.06.2011, when the deceased was driving his Xylo car bearing registration no.TN-07-F-9209 with his friend Ashok kumar as a passenger, the first respondent drove the tractor along with the trailer bearing registration no.TN-49- D-4491 dashed against the car. The deceased and his friend sustained injuries. The deceased was taken to the Government hospital, Jayankondam and he was taken to Thanjavur Medical College hospital and there, he succumbed to death. The deceased was 33 years old at the time of the accident. The petitioners are his dependants and they claim a sum of Rs.75,00,000/- (Rupees Seventy Five Lakhs only) as compensation.
4.Brief substance of the counter filed by the first respondent therein is as follows:
The deceased is responsible for the accident. The trailer is not responsible for the accident. The first respondent is not liable to pay compensation.
5.Brief substance of the counter filed by the second respondent therein is as follows:
The trailer is not responsible for the accident. Only the deceased is responsible for the accident. The second respondent is not liable to pay compensation.
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6.Brief substance of the counter filed by the third respondent therein is as follows:
The trailer is not responsible for the accident. Only the deceased is responsible for the accident. The third respondent is not liable to pay compensation.
7.Brief substance of the counter filed by the fourth respondent therein is as follows:
The validity of the driving licence of the third respondent and the validity of the policy are to be proved. The accident occurred because of the rash and negligent driving of the deceased. On seeing the tractor that came from the opposite direction, the deceased could not control the speed of the car and he dashed against the tractor. The negligence is on the part of the deceased himself. The age, income and profession of the deceased are all denied. The claim is arbitrary and excessive. The respondents 3 and 4 are not dependants. It was the respondents 1 and 2, who are liable to pay compensation.
8.Brief substance of the additional counter filed by the fourth respondent therein is as follows:
The RC book of the trailer did not have endorsement from the RTO office. 4 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1193 of 2016 Two trailers were involved. The trailer bearing registration no.TN-46-D-4491 and TN-46-D-4492 were not insured with this respondent. There was no proper endorsement relating to the tractor. The terms and conditions relating to the policy in TN-61-A-5689 has been violated. This respondent is not liable to pay compensation.
9.On the side of the claimants, three witnesses were examined and 12 documents were marked. On the side of the respondents, three witnesses were examined and 12 documents were marked. After trial, the Tribunal has awarded a sum of Rs.18,91,176/- (Rupees Eighteen Lakhs Ninety One Thousand One Hudnred and Seventy Six only) as compensation to be paid by the fourth respondent therein. Against which, the appellant has preferred this Civil Miscellaneous Appeal.
10.On the side of the appellant, it is stated that the issue of negligence ought to have been proved by the claimants. The trailer only hit against the car and hence, the finding of the Tribunal is wrong. The accident took place on account of collision of lorry. The entire liability cannot be fixed on the tractor. The negligence should be apportioned for the owner of the trailer also.
11.On the side of the appellant, it is stated that only the trailer dashed against the right side of the car. The trailer was insured with the New India Insurance 5 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1193 of 2016 Company. The tractor was insured with the National Insurance Company. The Tribunal failed to consider who is the responsible for the accident. The Tribunal failed to consider whether the owner of the tractor or the trailer has to pay the compensation. Without the tractor, the trailer cannot be moved. The claim petition was dismissed against the trailer. The entire liability was fixed on the tractor. The tractor was hit against the car. FIR and chargesheet was clear as to the part of the trailer in the accident. Only trailer hit the car and the liability has to be apportioned between the owner of the tractor and the trailer. The trailer is not a main vehicle but when the same was attached with the vehicle, it become the part of the main vehicle. The liability of a trailer cannot be separated from that of the tractor.
12.On the side of the 7th respondent, it is stated that the trailer attached with the 6th respondent was insured with the 7th respondent and hence, the liability should be apportioned. In support of this contention, a judgment of the Andhra High Court in the case of United India Insurance Company v. Koduru Bhagyamma and others reported in 2008 (2) ALD 273 is cited, wherein it is stated as follows:
“The principle of claim for compensation in accidents arising out of the use of the motor vehicle is based on tortuous liability and the negligence of the driver of the motor vehicle is a sine quo non for maintaining a claim under the provisions of the Act. Inasmuch as the trailer by itself cannot be driven and it has to 6 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1193 of 2016 be carried or towed with a motor vehicle namely a tractor or a like self propelled vehicles. Therefore, the question of driving the trailer in a rash and negligent manner would not arise. It is only the prime mover or the motor vehicle which controls movement of the tractor and in case of the negligence driving of the trailer or the motor vehicle, the owner of the vehicle and its insurer alone will be made liable for payment of compensation.
The same situation also persists in Chapter – X in case of no fault liability wherein it has been stated that whether a death or a permanent disability of any person has been resulted from an accident arising out of the use of a motor vehicle or motor vehicles and there is no reference to vehicle as such.”
13.On the side of the 7th respondent, it is stated that the trailer become a part of the motor vehicle, when it is drawn by tractor and the trailer attached with tractor is a part of the tractor and cannot be separated for the purpose of third party liability. The car dashed against the trailer. The deceased was a police Constable. The negligence was on the part of the tractor. The appellant cannot raise a new plea for apportionment of compensation and prayed the appeal to be dismissed with costs.
14.It is seen that FIR was registered against the driver of the tractor. From the evidence of P.W.1 and Ex.P1, Ex.P2, Ex.P6, Ex.R3, Ex.R5, Ex.R7, Ex.R8, Ex.R9, it is decided that the tractor driver was responsible for the accident. The 7 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1193 of 2016 trailer is not a motor vehicle and the trailer cannot be used independently. It has to be moved only with the help of a motorized vehicle. The case of the appellant is that it was the trailer which hit the car not the tractor but the trailer was moved with the help of the tractor. The claim of the appellant is to apportion the compensation between the trailer and the tractor. No eye witness was examined on the side of the appellant. The Tribunal fixed the liability on the appellant. The appellant was granted permission to recover the amount from the owner of the vehicle.
15.In the above circumstances, there is nothing sufficient enough to interfere in the order passed in M.C.O.P.No.198 of 2012 dated 13.02.2014, on the file of the Motor Accident Claims Tribunal, Special District Judge, Thanjavur.
16.Hence, it is decided that the respondents 1 to 5 herein are entitled to a sum of Rs.18,91,176/- (Rupees Eighteen Lakhs Ninety One Thousand One Hundred and Seventy Six only) as compensation with interest at the rate of 7.5% from the date of the claim petition till the date of realization.
17.The appellant herein is directed to deposit Rs.18,91,176/- (Rupees Eighteen Lakhs Ninety One Thousand One Hundred and Seventy Six only) with 7.5% interest from date of the claim petition till the date of realization with cost and 8 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1193 of 2016 the amount has to be deposited within a period of 8 weeks from the date of receipt of copy of this order. On such deposit, the respondents 1, 3 to 5 are permitted to withdraw their respective shares, with interest after deducting any amount received by him earlier. On such deposit, the Tribunal is directed to deposit the share of the minor claimant in any one of the Nationalised Banks, in a Fixed Deposit scheme, till they attain majority. The first respondent herein, who is the mother and guardian of the minor claimant, is permitted to withdraw the accrued interest once in three months directly from the bank, only for the welfare of minor. The claimants are not entitled for interest for the default period, if there is any. Excess amount, if any deposited shall be refunded to the appellant herein. In the result, this Civil Miscellaneous Appeal is dismissed. No Costs. Consequently, connected miscellaneous petition is closed.
26.11.2021
Index : Yes/No
Internet : Yes/No
MRN
Note : In view of the present lock down owing to COVID – 19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
9 / 10 https://www.mhc.tn.gov.in/judis C.M.A.(MD)No.1193 of 2016 R. THARANI, J.
MRN To
1.The Motor Accidents Claims Tribunal, (Special District Judge), Thanjavur.
2.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
C.M.A.(MD)No.1193 of 2016
26.11.2021 10 / 10 https://www.mhc.tn.gov.in/judis