Madras High Court
The Divisional Manager vs Jain-Ul-Arabhu on 2 November, 2018
Author: V.M.Velumani
Bench: V.M.Velumani
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.11.2018
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.(MD)Nos.111 to 114 of 2009
and
M.P.(MD)Nos.2,1, 2 and 2 of 2009
C.M.A.(MD)No.111 of 2009
The Divisional Manager,
The New India Assurance Company Limited,
242-B, Kamarajar Salai,
Madurai-9. ... Appellant / Respondent No.2
Vs.
1.Jain-Ul-Arabhu
2.Sheik Sabeer
3.Syed Ibrahim
4.Rahumadhullah
5.Hamsath Begum
6.Abdullah ... Respondents 1 to 6 / Petitioners
7.Janakiraman ... 7th Respondent / 1st Respondent
C.M.A.(MD)No.112 of 2009
The Divisional Manager,
The New India Assurance Company Limited,
242-B, Kamarajar Salai,
Madurai-9. ... Appellant / Respondent No.2
Vs.
1.Lakshmanan ... 1st Respondent / Petitioner
2.Janakiraman ... 2nd Respondent / 1st Respondent
http://www.judis.nic.in
2
C.M.A.(MD)No.113 of 2009
The Divisional Manager,
The New India Assurance Company Limited,
242-B, Kamarajar Salai,
Madurai-9. ... Appellant / Respondent No.2
Vs.
1.Minor Mafuruga Beevi
Represented by her Father Guardian
Sulthan ... 1st Respondent / Petitioner
2.Janakiraman ... 2nd Respondent / 1st Respondent
C.M.A.(MD)No.114 of 2009
The Divisional Manager,
The New India Assurance Company Limited,
242-B, Kamarajar Salai,
Madurai-9. ... Appellant / Respondent No.2
Vs.
1.Haja Mohaideen ... 1st Respondent / Petitioner
2.Janakiraman ... 2nd Respondent / 1st Respondent
COMMON PRAYER: These Civil Miscellaneous Appeals are filed
under Section 173 of Motor Vehicle Act, 1998 to set aside the
common judgment and decree dated 22.02.2008 made in
M.C.O.P.Nos.196, 205, 207 and 214 of 2005 on the file of the Motor
Accident Claims Tribunal, Additional District and Sessions Judge,
Fast Track Court, Ramanathapuram.
For Appellant : Mr.J.S.Murali
in all appeals
For R1 to R6 : Mr.R.R.Thamothar Raj
(in C.M.A.(MD)No.111 of 2009)
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3
For R1 : No Appearance
(in C.M.A.(MD)No.113 of 2009)
For R7 : Mr.K.Kumaravel
(in C.M.A.(MD)No.111 of 2009)
For R1 : Mr.R.R.Thamothar Raj
(in C.M.A.(MD)Nos.112 and 114 of
2009)
For R2 : Mr.K.Kumaravel
(in C.M.A.(MD)Nos.112 to 114 of
2009)
COMMON JUDGMENT
All these appeals are arising out of the very same accident and hence, they are heard together and disposed of by this common judgment.
2.The parties are referred to as per rank in the claim petitions.
3.These Civil Miscellaneous Appeals have been filed to set aside the common award dated 22.02.2008, made in M.C.O.P.Nos. 196, 205, 207 and 214 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Ramanathapuram.
4.The claimants, who are the legal representatives of one Allahvudeen, have filed claim petition in M.C.O.P.No.196 of 2005 and http://www.judis.nic.in 4 other injured claimants have filed claim petitions in M.C.O.P.Nos.205, 207 and 214 of 2005, claiming compensation for the injuries sustained by them in the accident that took place on 31.03.2005.
5.According to the claimants, on 31.03.2005 at 06.20 A.M., the said Allahvudeen and the claimants in other claim petitions were in a Tea Shop near Vedhalai Bus Stop on Rameswaram to Madurai National Highway. At that time, a Tata 407 Van, bearing Registration No.TN 65 A 7211, belonging to the first respondent, driven by the driver of the first respondent in a rash and negligent manner, dashed against the said Allahvudeen and other claimants. Due to the said impact, the said Allahvudeen died and other injured claimants were taken to hospital.
6.Before the Tribunal, the injured claimants have examined themselves as P.W.1 to P.W.4, one Dr.Palaniappan was examined as P.W.5 and 21 documents were marked as Exs.P.1 to P.21. One Dasthahir was examined as R.W.1 and the first respondent examined himself as R.W.2 and three documents were marked as Ex.R.1 to Ex.R.3.
7.The Tribunal after considering the pleadings, both oral and documentary evidence, held that the accident occurred only due to http://www.judis.nic.in 5 rash and negligent driving by the driver of the Van, belonging to the first respondent and awarded various amounts to the claimants.
8.Aggrieved by the said award, the appellant / Insurance Company has come out with the present appeals.
9.The learned counsel appearing for the appellant / Insurance Company contended that at the time of accident, one Shanmuganthan was driving the vehicle and he did not possess valid driving licence and charge sheet was laid against the said Shanmuganthan for not possessing driving licence and also against Manthiram, who was the driver of the vehicle, belonging to the first respondent. The Tribunal failed to consider the First Information Report and charge sheet and on erroneously, fixed the liability on the second respondent / Insurance Company. The Tribunal failed to frame the points for consideration as to whether the Shanmuganthan or Manthiram was driving the vehicle at the time of accident. The second respondent / Insurance Company is not liable to pay any compensation, as if a person, without having valid driving licence, drove the vehicle and caused accident. In any event, the amount awarded by the Tribunal and interest at the rate of 9.5% p.a. are excessive.
10.The learned counsel appearing for the claimants in all the appeals contended that the claimants have examined as witnesses http://www.judis.nic.in 6 and filed documents to prove that the accident occurred ony due to rash and negligent driving by the driver of the Van. The Tribunal has considered all the materials in proper perspective and awarded compensation and the same is not excessive.
11.The learned counsel appearing for the first respondent / owner of the vehicle contended that the first respondent entrusted the vehicle to his driver Manthiram, who had valid driving licence and without his knowledge, the said Manthiram allowed another person to drive the vehicle. In view of the same, the appellant as insurer is liable to pay compensation, as there is a valid insurance policy on the date of accident. The appellant Insurance Company did not let in any oral and documentary evidence to prove that the driver of the vehicle was not possessing the driving licence and in support of his contention, he relied on the judgment of this Court in the case of G.Nagendra Devi and three others Vs. Y.Mosses and two others reported in 2001 (3) CTC 219.
12.Heard the learned counsel appearing for the parties and perused the materials available on record carefully. Though notice has been served on the first respondent in C.M.A.(MD)No.113 of 2009 and her name is printed in the cause list, she has not chosen to appear either in person or through counsel. http://www.judis.nic.in 7
13.From the materials on record, it is seen that the first respondent / owner of the vehicle has entrusted the vehicle to his driver Manthiram, who was in the vehicle at the time of accident. Charge sheet was laid against both the Shanmuganthan and Manthiram. The second respondent / Insurance Company has not let in any acceptable evidence to prove that the first respondent entrusted the vehicle to a person, who was not having valid driving licence at the time of accident. On the other hand, the first respondent deposed as R.W.2 before the Tribunal that he entrusted the Van only to the person having valid driving licence.
14.Considering the entire materials on record and evidence, this Court is of the considered view that the first respondent / owner of the vehicle entrusted the vehicle to Manthiram, who had valid driving licence and without knowledge of the first respondent, the said Manthiram had allowed the said Shanmuganthan to drive the vehicle at the time of accident.
15.In view of the above facts, as per the well settled judicial pronouncement, the second respondent / Insurance Company cannot be exonerated from its liability to pay compensation, as they failed to prove that the first respondent had entrusted the vehicle to a person, who had no driving licence at the time of accident. The Tribunal has http://www.judis.nic.in 8 elaborately considered this point and held that the appellant / Insurance Company is liable to pay compensation by giving cogent and valid reason, which does not require any interference.
16.Though it is stated by the appellant Insurance Company that the Tribunal has excessively awarded compensation amount, this Court is of the view that the award amount cannot be termed as excessive. The contention of the learned counsel for the appellant that the rate of interest awarded by the Tribunal is on the higher side, has considerable force. Therefore, the interest at the rate of 9.5% p.a. awarded by the Tribunal is reduced to 7.5% p.a.
17.In view of the above reasons, these Civil Miscellaneous Appeals are partly allowed, directing the appellant / Insurance Company to deposit the entire award amount to the credit of M.C.O.P.Nos.196, 205, 207 and 214 of 2005 on the file of the Motor Accident Claims Tribunal / Additional District and Sessions Judge, Fast Track Court, Ramanathapuram, less the amount already deposited, if any, along with interest at the rate of 7.5% p.a. from the date of claim petitions till the date of deposit and costs, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the claimants are permitted to withdraw the said amount, less the amount, if any, already withdrawn, by http://www.judis.nic.in 9 making necessary application before the Tribunal. No costs. Consequently, connected miscellaneous petitions are closed.
02.11.2018 Index : Yes / No Internet : Yes/ No Myr To
1.The Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Ramanathapuram.
2.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 10 V.M.VELUMANI, J.
Myr C.M.A.(MD)Nos.111 to 114 of 2009 02.11.2018 http://www.judis.nic.in