Madras High Court
M/S.Bajaj Allianz General Insurance ... vs Thajin on 22 March, 2021
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.4347 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.4347 of 2019
and
C.M.P.No.24792 of 2019
M/s.Bajaj Allianz General Insurance Company Limited,
No.1, G.D.S. Complex,
New Katpadi Road,
Vellore Town,
Vellore District. .. Appellant
Vs.
1.Thajin
2.Hamath
3.Dhandayuthapani .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
29.04.2019 made in M.C.O.P.No.311 of 2012 on the file of the Motor
Accidents Claims Tribunal, Sub Court, Gingee.
For Appellant : Mr.M.B.Raghavan
for M/s.M.B.Gopalan Associates
For RR 1 & 2 : Mr.R.Agilesh
for Mr.T.Dhanasekaran
For R3 : No appearance
1/12
https://www.mhc.tn.gov.in/judis/
C.M.A.No.4347 of 2019
JUDGMENT
The matter is heard through “Video Conferencing/Hybrid mode”.
2.This Civil Miscellaneous Appeal has been filed to set aside the award dated 29.04.2019 made in M.C.O.P.No.311 of 2012 on the file of the Motor Accidents Claims Tribunal, Sub Court, Gingee.
3.The appellant is the 2nd respondent in M.C.O.P.No.311 of 2012 on the file of the Motor Accidents Claims Tribunal, Sub Court, Gingee. The respondents 1 & 2 filed the said claim petition claiming a sum of Rs.20,00,000/- as compensation for the death of their son viz., Shafi, who died in the accident that took place on 06.09.2012.
4.According to respondents 1 & 2, on 06.09.2012 at about 10.30 P.M., while their son Shafi was standing on the left side of the Neelampoondi Bus Stop, the driver of the white color Xylo car bearing Registration No.TN 23 BB 0115 came in a rash and negligent manner and dashed against the said Shafi, caused the accident and ran away from the place of occurrence. In the accident, the said Shafi suffered grievous injuries and he was admitted in the 2/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.4347 of 2019 Government Hospital, Gingee and then he was taken to Jipmer Hospital, Pondicherry. Inspite of treatment, the said Shafi succumbed to injuries. Therefore, the respondents 1& 2, filed the above said claim petition claiming a sum of Rs.20,00,000/- as compensation for the death of their son Shafi, against the 3rd respondent and appellant-Insurance Company, being the owner and insurer of the car respectively.
5.The 3rd respondent, being the owner of the car remained exparte before the Tribunal.
6.The appellant-Insurance Company, being the insurer of the car owned by 3rd respondent filed counter statement and denied all the averments made by the respondents 1& 2. The appellant denied the manner of accident as alleged by the respondents 1 & 2. According to the appellant, the car mentioned by the respondents 1 & 2 is not involved in the accident and therefore, the appellant is not liable to pay any compensation to the respondents 1 & 2. As per the F.I.R., the incident took place on 06.09.2012 at about 10.30 P.M. In the complaint itself the Registration Number has been mentioned with regard to offending vehicle. After that the Police in collusion with the 1st respondent to get unjust compensation from the appellant, foisted 3/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.4347 of 2019 the case against the 3rd respondent's car. Without any proof and proper enquiry, the car owned by 3rd respondent has been fixed as offending vehicle. The car owned by 3rd respondent is not the offending vehicle and hence, the appellant is not liable to pay any compensation to the respondents 1 & 2. There was a delay of one day in lodging the complaint to the Police Station which creates strong suspicion over the genuineness of the contents of the F.I.R. The appellant denied the fact that the driver of the car was possessing valid driving license at the time of accident. The car owned by 3rd respondent was not insured with the appellant and the appellant is unncessary party in the claim petition. The appellant denied the fact that the 3rd respondent's car was having valid Registration Certificate, permit and Fitness Certificate at the time of accident. The appellant denied the age, avocation and income of the deceased. The respondents 1 & 2 have to prove that they are the legal heirs of the deceased by producing valid documents. The quantum of compensation claimed by the respondents 1 & 2 is highly excessive and prayed for dismissal of the claim petition.
7.Before the Tribunal, 2nd respondent examined himself as P.W.1, one Jaffar, eyewitness to the accident was examined as P.W.2 and 12 documents were marked as Exs.P1 to P12. On behalf of the appellant-Insurance 4/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.4347 of 2019 Company, 3 witnesses were examined as R.W.1 to R.W.3 and five documents were marked as Exs.R1 to R5.
8.The Tribunal, considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the car owned by 3rd respondent and directed the 3rd respondent and appellant-Insurance Company to pay a sum of Rs.9,22,200/- as compensation to respondents 1 & 2.
9.To set aside the said award dated 29.04.2019 made in M.C.O.P.No.311 of 2012, the appellant has come out with the present appeal.
10.The learned counsel appearing for the appellant-Insurance Company contended that the vehicle owned by 3rd respondent was not involved in the accident. The 3rd respondent-owner of the car as R.W.1 deposed that his car crossed the place of accident at 11.00 P.M. whereas, the accident has occurred at 10.30 P.M. In the complaint given on the next day, the Registration Number of the car owned by 3rd respondent and insured with appellant was not mentioned. The appellant examined the 3rd respondent and proved their case. The Tribunal erroneously without appreciating the 5/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.4347 of 2019 evidence of R.W.1, relied on the self-serving and unreliable evidence let in by the respondents 1 & 2, held that accident occurred only due to involvement of the car owned by 3rd respondent. The Tribunal failed to consider the discrepancy in the evidence of P.W.2, narration of manner of identification of the car owned by 3rd respondent by Investigating Officer. There was no acceptable evidence for implementing the car owned by 3rd respondent. The Tribunal relied on the charge sheet, but failed to consider the judgment in the Criminal case and the evidence of R.W.1. The Tribunal erred in relying upon the evidence of P.W.2, whose story of having chased the vehicle cannot be true when the F.I.R. given on the next day does not identify any particulars about the vehicle and especially the Registration Number of the car. The Tribunal erred in observing that vehicle number TN 23 was seen by the eyewitness, when in the F.I.R., the Registration Number of the car was not mentioned though it was registered one day later. The Tribunal erred in believing the false evidence of the alleged eyewitness and erroneously ignored the serious discrepancy in the evidence. The Tribunal ought to have rejected the judgment in the Criminal Court and exonerated the appellant- Insurance Company from its liability and prayed for allowing the appeal.
11.Per contra, learned counsel appearing for the respondents 1 & 2 6/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.4347 of 2019 contended that the 3rd respondent, who is the driver cum owner of the car after causing the accident, did not stop the car and drove away the car from the place of occurrence. P.W.2/eyewitness chased the car and tried to note down the Registration Number of the car, but only noted down TN 23. Immediately P.W.2 informed the Valathi Police Station, who informed the Police at Chetpet about the accident. The Sub-Inspector of Police, Chetpet found the car owned by 3rd respondent at a Tea shop. On seeing the Police, the 3rd respondent, drove away the car. The Sub-Inspector of Police, Chetpet Police Station noted down the Registration Number of the car owned by 3rd respondent. P.W.2/eyewitness similarly deposed about the manner of accident and a part of the Registration Number of the car, i.e., TN 23. The Tribunal properly appreciating the materials placed before it, held that vehilce owned by 3rd respondent is involved in the accident and appellant as insurer of the car is liable to pay the compensation. There is no error in the award of the Tribunal and prayed for dismissal of the appeal.
12.Though notice has been served on the 3rd respondent and his name is printed in the cause list, there is no representation for him, either in person or through counsel.
7/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.4347 of 2019
13.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents 1 & 2 and perused the entire materials on record.
14.It is the case of the respondents 1 & 2 that while their son Shafi was standing on the left side of the Neelampoondi Bus Stop, the driver of the white color Xylo car bearing Registration No.TN 23 BB 0115 came in a rash and negligent manner and dashed against the said Shafi, caused the accident and ran away from the place of occurrence. In the accident, their son sustained injuries and died. To substantiate their case, they examined the 2nd respondent as P.W.1 and one Jaffar, eyewitness to the accident as P.W.2. The respondents 1 & 2 marked F.I.R. and Final Report. On the other hand, it is the case of the appellant that car owned by 3rd respondent was not involved in the accident. The respondents 1 & 2 in collusion with Police, falsely implicated the car owned by 3rd respondent and claimed compensation from the appellant. In support of their case, the appellant examined the 3rd respondent- owner of the car as R.W.1 and marked judgment in C.C.No.271 of 2012,final report, list of witnesses, copy of insurance policy and claim filed by the 3rd respondent as Exs.R1 to R4. From the materials on record, it is an admitted fact that car which hit the son of the respondents 1 & 2 did not stop after the 8/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.4347 of 2019 accident. It is also admitted that P.W.2, alleged eyewitness could not note down the entire registration number of the car and he noted only 'TN 23'. According to P.W.2, immediately after the accident, he went to Valathi Police Station and informed about the accident and informed that car bearing Registration No.TN 23 hit the said Shafi. The said Police informed the Chetpet Police Station. According to respondents 1 & 2, the 3 rd respondent, who was waiting near a Tea Stall, drove away on seeing the Sub-Inspector of Police, Chetpet Police Station. The said Sub-Inspector of Police, noted down the Registration Number of the car. It is pertinent to note that when the 1 st respondent gave a complaint on the next day, do not inform the Xylo car and Registration Number. It is also to be taken note that Valathi Police did not register the F.I.R. immediately. On registering the F.I.R. from the evidence of P.W.2 and Sub-Inspector of Police, Chetpet Police Station who alleged to have noted down the Registration Number of the car at 11.00 P.M. itself, the Police have mentioned the details of the car in the F.I.R., which was registered on the next day even after coming to know from Sub-Inspector of Police, Chetpet Police Station. There is no explanation by P.W.2 for not giving complaint in writing. The respondents 1 & 2 have not examined the Sub-Inspector of Police, Chetpet Police Station, who alleged to have noted down the Registration Number of car owned by 3rd respondent which was 9/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.4347 of 2019 mentioned in the Final Report. As rightly pointed out by the learned counsel appearing for the appellant the Tribunal has considered only F.I.R., charge sheet, but did not consider the judgment in C.C.No.271 of 2012, which was marked as Ex.R1. The Tribunal has also failed to consider both oral and documentary evidence let in by the appellant properly. The Tribunal on presumption and assumption has held that the car owned by 3rd respondent was involved in the accident. The reason given by the Tribunal for such a finding is erroneous. The Tribunal in paragraph No.15 of the judgment held as follows:
“nkw;fz;lthW neuo rhl;rpa';fs;
thfdk; Fwpj;J kpff;Fwpg;ghf rhl;rpak;
mspf;ftpy;iy vd;whYk; rk;gt
neuj;ija[k; nkw;fz;l cs;s re;ju;g;g
rhl;rpa';fisa[k; fUj;jpy;
bfhs;Sk;nghJ ,e;j tpgj;jhdJ 1k;
vjpu;kDjhuuhy; Vw;gLj;jg;gl;lJ vd;w
jPu;khdj;jpw;F tuKoatpy;iy/”
15.The Tribunal having held that based on available materials and evidence, it cannot be concluded that 3rd respondent has caused the accident, erroneously directed the appellant to pay the compensation on the ground that the car owned by 3rd respondent was insured with the appellant. In view of the 10/12 https://www.mhc.tn.gov.in/judis/ C.M.A.No.4347 of 2019 above materials, the award of the Tribunal directing the appellant to pay the compensation is liable to be set aside and it is hereby set aside.
16.In the result, this Civil Miscellaneous Appeal is allowed by setting aside the award passed by the Tribunal in the claim petition. The appellant- Insurance Company is permitted to withdraw the award amount lying in the credit of M.C.O.P.No.311 of 2012 on the file of the Motor Accidents Claims Tribunal, Sub Court, Gingee, if the award amount has been already deposited by them. Consequently, the connected Miscellaneous Petition is closed No costs.
22.03.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Subordinate Judge,
Motor Accidents Claims Tribunal,
Gingee.
2.The Section Officer,
VR Section,
High Court,
Madras.
11/12
https://www.mhc.tn.gov.in/judis/
C.M.A.No.4347 of 2019
V.M.VELUMANI, J.
krk
C.M.A.No.4347 of 2019
22.03.2021
12/12
https://www.mhc.tn.gov.in/judis/