Madras High Court
Branch Manager vs R.Jayapriyan on 17 March, 2021
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.809 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.809 of 2021
and CMP.No.4749 of 2021
Branch Manager,
National Insurance Company Limited,
No.194-A, Nethaji Road,
Thiruvarur Taluk and Munsif & District. .. Appellant
Vs.
1.R.Jayapriyan
2.J.Kamala .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 26.07.2019
made in M.C.O.P.No.105 of 2018, on the file of the Chief Judicial Magistrate
Court, (Motor Accidents Claims Tribunal), Thiruvarur.
For Appellant : Mr.S.Vadivel
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http://www.judis.nic.in
C.M.A.No.809 of 2021
JUDGMENT
(The matter is heard through "Video Conferencing/Hybrid mode") This Civil Miscellaneous Appeal has been filed by the appellant- Insurance Company to set aside the judgment and decree dated 26.07.2019 made in M.C.O.P.No.105 of 2018, on the file of the Chief Judicial Magistrate Court, (Motor Accidents Claims Tribunal), Thiruvarur.
2.The appellant is the 2nd respondent in M.C.O.P.No.105 of 2018, on the file of the Chief Judicial Magistrate Court, (Motor Accidents Claims Tribunal), Thiruvarur. The 1st respondent/claimant filed the said claim petition, claiming a sum of Rs.60,00,000/- as compensation for the injuries sustained by him in the accident that took place on 11.07.2017.
3.According to the 1st respondent, on the date of accident, when he was riding a Motorcycle bearing Registration No.TN-50-AB-3003 along with two pillion riders viz., Praveenkumar and Rajesh in the Sannanallur to Thiruvarur Main Road, from North to South, in the extreme left side of the road, the driver of a Private Bus bearing Registration No.TN-50-M-3399 belonging to the 2nd respondent coming in opposite direction, drove the vehicle in a rash _____ 2/11 http://www.judis.nic.in C.M.A.No.809 of 2021 and negligent manner and hit against the Motorcycle driven by the 1st respondent and caused the accident. In the accident, the 1 st respondent sustained severe injuries and hence, filed the said claim petition, claiming compensation against the 2nd respondent as owner and appellant as insurer of the Private Bus respectively.
4.The 2nd respondent, owner of the Private Bus, remained exparte before the Tribunal.
5.The appellant-Insurance Company, filed counter statement and denied all the averments made by the 1st respondent in the claim petition, including the manner of accident. According to the appellant, at the time of accident, the 1st respondent drove the Motorcycle in an inebriated condition along with two pillion riders and dashed against the Bus which was coming in the opposite direction in right manner. The accident occurred on the middle of the road on the opposite side, which shows the contributory negligence. The driver of the Private Bus did not possess valid driving license to ply the vehicle and the 2nd respondent did not possess vehicular records. Hence, for violation of policy conditions, the appellant is not liable to indemnify the 2nd respondent. The 1st respondent has to prove that the accident occurred only _____ 3/11 http://www.judis.nic.in C.M.A.No.809 of 2021 due to the negligence of the driver of the Private Bus. The claim petition is bad for non-joinder of owner and insurer of the Motorcycle. The 1st respondent also has to prove his age, avocation and income, to claim compensation. In any event, the total compensation claimed by the 1st respondent is excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1 and marked 17 documents as Exs.P1 to P17. The appellant examined one Selvam, their official as R.W.1 and marked one document as Ex.R1. The partial disability certificate was marked as Ex.X1.
7.The Tribunal considering the pleadings, oral and documentary evidence, held that accident occurred due to negligence of the driver of the 2nd respondent and fixed 10% contributory negligence on the part of the 1 st respondent for driving the Motorcycle under the influence of alcohol and 90% negligence on the driver of the Private Bus. The Tribunal awarded a sum of Rs.10,78,265/- and directed the 2nd respondent as well as the appellant to jointly and severally pay a sum of Rs.9,70,439/-, being 90% of the award amount, as compensation to the 1st respondent. _____ 4/11 http://www.judis.nic.in C.M.A.No.809 of 2021
8.To set aside the said award of the Tribunal dated 26.07.2019 made in M.C.O.P.No.105 of 2018, the appellant - Insurance Company has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company contended that the present appeal is filed against fixing 90% negligence on the driver of the Private Bus and liability fastened on the appellant. The learned counsel appearing for the appellant contended that the Tribunal failed to see that at the time of accident, three persons traveled in the Motorcycle driven by the 1st respondent and he himself admitted the same. The 1st respondent was under the influence of alcohol and the same was mentioned in Ex.P9 – Accident Register. The Tribunal having accepted Ex.P9, ought to have dismissed the claim petition. The appellant examined their Official as R.W.1 and marked Investigator Report as Ex.R1 and proved the defence taken by them. The Tribunal ought to have dismissed the claim petition, instead of fixing only 10% contributory negligence for consumption of alcohol and prayed for setting aside the award of the Tribunal.
10.Heard the learned counsel appearing for the appellant-Insurance _____ 5/11 http://www.judis.nic.in C.M.A.No.809 of 2021 Company and perused the materials available on record.
11.It is the contention of the 1st respondent that on the date of accident, he was riding a Motorcycle along with his friends carefully on the left hand side of the road. At that time, the driver of the Private Bus belonging to the 2 nd respondent drove the vehicle in a rash and negligent manner and dashed on the Motorcycle driven by the 1st respondent and caused the accident. To substantiate his case, the 1st respondent examined himself as P.W.1 and marked FIR which was registered against the the driver of the Bus as Ex.P1 and judgment in STC No.31/2018 as Ex.P10, wherein the driver admitted his guilt and paid fine. On the other hand, it is the case of the appellant that the 1st respondent drove the Motorcycle with two pillion riders under the influence of alcohol and caused the accident. To substantiate their case, they examined their official as R.W.1 and marked Investigation Report as Ex.R1. R.W.1 admitted in his cross examination that he has given the evidence based on the record and he is not an eye-witness. The appellant has not examined the driver of the Bus or any eye-witness. The appellant also not proved that the 1 st respondent was under the influence of alcohol and contributed negligence to the accident.
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12.From the materials on record, it is seen that no test was conducted to find out the alcohol contents in the blood level of the 1st respondent. In the absence of any test, the Tribunal erroneously deducted 10% of the compensation awarded to the 1st respondent, on the ground that he was under
the influence of alcohol. The appellant has not proved that only due to the negligence of the 1st respondent, the accident has occurred. The Tribunal, in the absence of any contra evidence let in by the appellant, accepted the evidence of P.W.1 and documents marked as Ex.P1 - FIR and Ex.P10 – judgment in the Criminal Court and held that the accident occurred due to rash and negligent driving by driver of the Private Bus. There is no error in the said finding of the Tribunal, warranting interference by this Court.
13.As far as the contention of the learned counsel appearing for the appellant that at the time of accident, three persons traveled in a Motorcycle and the Tribunal ought to have fixed the entire negligence on the 1 st respondent is concerned, the appellant has not let in any evidence to prove that due to three persons traveling in the Motorcycle, the accident occurred. The Hon'ble Apex Court in the judgment reported in 2020 (3) SCC 57 [Mohammed Siddique and another Vs. National Insurance Co. Ltd.] held that only when it is proved that accident occurred due to three persons _____ 7/11 http://www.judis.nic.in C.M.A.No.809 of 2021 traveling in the Motorcycle, negligence can be fixed on the rider of the Motorcycle. The relevant portion of the said judgment reads as follows:
“13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two-wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that _____ 8/11 http://www.judis.nic.in C.M.A.No.809 of 2021 the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance.
14.Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.” In view of the above judgment, the contention of the learned counsel appearing for the appellant is not acceptable.
14.In the result, this Civil Miscellaneous Appeal is dismissed and the amount awarded by the Tribunal at Rs.10,78,265/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit is confirmed. The appellant-Insurance Company is directed to deposit a sum of Rs.9,70,439/-, being 90% of the award amount determined by the Tribunal, along with interest and costs, less the amount if any already deposited, within _____ 9/11 http://www.judis.nic.in C.M.A.No.809 of 2021 a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P. No.105 of 2018. On such deposit, the 1st respondent is permitted to withdraw the award amount, along with interest and costs, after adjusting the amount, if any, already withdrawn, by filing necessary applications before the Tribunal. Consequently, connected Miscellaneous Petition is closed. No costs.
17.03.2021 Index : Yes / No gsa To
1.The Chief Judicial Magistrate, (Motor Accident Claims Tribunal), Thiruvarur.
2.The Section Officer, VR Section, High Court, Madras.
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