Madras High Court
Bajaj Allianz General Insurance Co. Ltd vs R.Noble Rani Selina on 2 November, 2018
Author: V.M.Velumani
Bench: V.M.Velumani
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.11.2018
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A(MD)No.1015 of 2012 & M.P.No.1 of 2012
and CMA (MD) Nos.1110 & 1111 of 2017
and C.M.P(MD)Nos.11271 of 2017
C.M.A(MD)No.1015 of 2012
Bajaj Allianz General Insurance Co. Ltd.,
Madurai, Tamilnadu Sarvodaya Sangh
Gramodyog Bhavan,
108, Second Floor, T.P.K. Road,
Madurai – 1. ... Appellant / 4th Respondent
Vs.
1.R.Noble Rani Selina
2.S.Agnes ... 1st & 2nd Respondents / Petitioners
3.V.Packiarathi ... 3rd Respondent / 1st Respondent
4.Royal Sundaram Alliance Insurance Co. Ltd.,
Sundaram Towers,
No.45 & 46, Whites Road,
Chennai – 14. ... 4th Respondent / 2nd Respondent
5.R.Selvam ... 4th Respondent / 3rd Respondent
6.R.Jebamani ... 6th Respondent / 5th Respondent
7.S.Agesta ... 7th Respondent / 6th Respondent
http://www.judis.nic.in
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PRAYER: Appeal filed under Section 173 of Motor Vehicles Act, 1988
against the judgment and decree in MCOP No.90/2010 dated
30.03.2012 on the file of the Motor Accidents Claims Tribunal,
Additional District Court, Fast Track Court No.I, Thoothukudi.
For Appellant : Mr.J.S.Murali
For RR1 & RR2 : Mr.S.Sivathilakan
For R3 : Tapal Due
For R4 : Ms.K.R.Shivashankari
for Mr.S.Srinivasa Raghavan
For RR5 & RR7 : Set exparte
For R6 : Tapal returned
C.M.A(MD)No.1110 of 2017
S.Vijaya ... Appellant / 3rd Party
Vs.
1.R.Noble Rani Selina
2.S.Agnes ... Respondents 1 & 2 / Petitioners
3.V.Packiarathi
4.Royal Sundaram Alliance Insurance Co. Ltd.,
Sundaram Towers,
No.45 & 46, Whites Road,
Chennai – 14.
5.R.Selvam
6.Bajaj Allianz General Insurance Co. Ltd.,
Madurai,
Tamilnadu Sarvodaya Sangh,
Gramodyog Bhavan,
http://www.judis.nic.in
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108, Second Floor,
T.P.K.Road,
Madurai – 625 001.
7.R.Jebamani
8.S.Agesta ... Respondents 3 to 8 / Respondents
PRAYER: Appeal filed under Section 173 of Motor Vehicles Act 1988
against the decree and judgment dated 30.03.2012 in MCOP No.90
of 2010 on the file of the Motor Accidents Claims Tribunal
(Additional District Judge cum Fast Track Court No.1), Tuticorin.
For Appellant : Mr.G.Aravinthan
For RR1 & RR2 : Mr.S.Sivathilakan
For R3, R5 & R8 : No appearance
For R4 : Tapal due
For R6 : Ms.K.R.Shivashankari
for Mr.S.Srinivasa Raghavan
R7 : Died
C.M.A(MD)No.1111 of 2017
S.Vijaya ... Appellant / 1st Petitioner
Vs.
1.V.Packia Rathinasabhabathi
2.Royal Sundaram Alliance Insurance
Co. Limited,
Sundaaram Towers
No.45 – 46, Whites Road,
Chennai – 600 014. ... Respondents / Respondents
http://www.judis.nic.in
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PRAYER: Appeal filed under Section 173 of Motor Vehicles Act 1988
against the decree and judgment dated 30.03.2012 passed in MCOP
No.177 of 2011 on the file of the Motor Accidents Claims Tribunal
(Additional District Judge cum Fast Track Court No.1), Tuticorin.
For Appellant : Mr.G.Aravinthan
For R1 : No appearance
For R2 : Tapal due
COMMON JUDGMENT
All the three appeals are arising out of common award dated 30.03.2012 made in MCOP No.90 of 2010 and MCOP No.177 of 2011. The appellant in CMA No.1015 of 2012 is the 4 th respondent in MCOP No.90 of 2010. The appellant in CMA Nos.1110 & 1111 of 2017 is the petitioner in MCOP No.177 of 2011 and third party in MCOP No.90 of 2010.
2. CMA No.1110 of 2017 is filed challenging the award granting compensation to the petitioners in MCOP No.90 of 2010 contending that the appellant in CMA Nos.1110 & 1111 of 2017 is only the legally wedded wife of deceased.
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3. CMA No.1111 of 2017 is filed against the order of dismissal of MCOP No.177 of 2011 claiming compensation for the death of Sathia Samuel Rajapandi.
4. All the appeals are heard together as the same arises out of same accident and disposed of by this common judgment. The parties are referred to as per their rank in MCOP No.90 of 2010 referring the appellant in CMA Nos.1110 & 1111 of 2017 as third party.
CMA No.1015 of 2012
5. Facts of the case :-
5(a) According to the petitioners in MCOP No.90 of 2010, the deceased Sathia Samuel Rajapandi was the husband of first petitioner, father of second petitioner & 6th respondent and son of 5th respondent. On 25.08.2009, at about 5.45 a.m., when the deceased Sathia Samuel Rajapandi was travelling in the car belonging to the first respondent alongwith third party (Vijaya) and one Arul Raj, insured with the second respondent, the driver of the car drove the same in a rash and negligent manner and dashed http://www.judis.nic.in 6 against the lorry belonging to the third respondent, insured with the fourth respondent which was parked without any signal. Due to the injuries sustained in the accident, the said Sathia Samuel Rajapandi and Arul Raj died on the spot. The deceased Sathia Samuel Rajapandi was aged 53 years at the time of accident and was working as a Teacher in Hindu Nadar Middle School, Kulathur, Vilathikulak Taluk, Thoothukudi and was drawing a monthly salary of Rs.25,000/-. The accident occurred only due to the negligence on the part of the drivers of the respondents 1 & 3. Therefore, the respondents 1 to 4 are jointly and severally liable to pay the compensation.
5 (b) The third party / appellant in CMA Nos.1110 & 1111 of 2017 filed MCOP No.177 of 2011 as first petitioner and fifth respondent in MCOP No.90 of 2010 as second petitioner.
Subsequently, the third party filed a memo to exonerate the fifth respondent as second petitioner in MCOP No.177 of 2011. The third party filed MCOP No.177 of 2011 stating that she was travelling alongwith one Arul Raj and the driver of the car drove the same in a rash and negligent manner and dashed behind the parked lorry and caused the accident. Due to the accident, the deceased Sathia http://www.judis.nic.in 7 Samuel Rajapandi and Arul Raj died on the spot. According to the third party, she is the wife of deceased Sathia Samuel Rajapandi and she is entitled to claim compensation.
5 (c) The second respondent (Royal Sundaram Insurance) filed counter denying all the averments and contended that the petitioners must prove that they are the legal heirs as there is dispute regarding legalheirship of the deceased and suit O.S.No.71 of 2010 is pending before the Principal District Munsif Court, Tuticorin against the District Collector, Tuticorin in this regard. The lorry belonging to the third respondent was parked in the middle of the road without any parking lamp and hence the driver of the lorry is responsible for the accident as the accident could have been avoided had he parked the lorry on the extreme left side of the road with proper parking light. The accident occurred only due to the rash and negligent act of the driver of the lorry in parking the vehicle and only the respondents 3 & 4 are liable to pay the compensation.
5(d) The fourth respondent (Bajaj Alliance General Insurance) filed counter statement and stated that the petitioners have to http://www.judis.nic.in 8 prove that the accident occurred only due to the rash and negligent act on the part of the driver of the third respondent. Petitioners and third respondent have to prove that the driver had valid driving licence on the date of the accident and the vehicular documents are in order. The lorry did not have permit at the time of accident. The accident occurred only due to the rash and negligent driving by the driver of the first respondent, FIR was registered only against the driver of the car. In any event, the amount claimed by the petitioners is excessive and prayed for dismissal.
5 (e) The fifth respondent, mother of the deceased filed counter statement and stated that the accident occurred due to the rash and negligent driving by the driver of the car as well as negligent act of the driver of the lorry. The fifth respondent is entitled to get 1/4th hare in the compensation amount awarded. The first petitioner is the legally wedded wife of the deceased, second petitioner and sixth respondent are only his daughters. The third party never got married to the deceased. Only to extract money, the third party filed claim petition. The respondents 1 to 4 are jointly and severally liable to pay the compensation. http://www.judis.nic.in 9 5 (f) The sixth respondent, daughter of the deceased filed counter and stated that the accident occurred due to the rash and negligent driving by the driver of the car and also due to the negligent act of the driver of the lorry and claimed 1/4 th compensation. She also stated that the first petitioner is the legally wedded wife and second petitioner & herself are the daughters of the deceased.
6. As per the order passed by this Court in CMP (MD) No.32 of 2011 and MP (MD) No.1 of 2011, joint trial was held and evidence was recorded in MCOP No.90 of 2010. In both the petitions, P.W.1 to 6 were examined and Exs.P1 to P37 were marked on the side of the petitioners and third party. On the side of the respondents, R.W.1 to 3 were examined and Exs.R1 & R2 were marked.
7. The Tribunal, considering the oral and documentary evidence, especially Ex.P1 – F.I.R., allowed MCOP No.90 of 2010 holding that the accident occurred only due to negligence of both the drivers of the vehicle and directed the respondents 1 & 2 to pay 50% and respondents 3 & 4 to pay 50% of the compensation amount to the petitioners and respondents 5 & 6. The Tribunal, http://www.judis.nic.in 10 dismissed the claim petition in MCOP No.177 of 2011 filed by the third party holding that she failed to prove her marriage with deceased Sathia Samuel Rajapandi.
8. Against the award granting compensation of Rs.10,07,500/- to the petitioners and respondents 5 & 6 in MCOP No.90 of 2010, the third party filed CMA No.1110 of 2017. CMA No.1111 of 2017 is filed against the order of dismissal of MCOP No.177 of 2011 by the third party claiming compensation for the death of Sathia Samuel Rajapandi.
CMA No.1015 of 20012 :
9. The learned counsel appearing for the fourth respondent (Bajaj Allianz General Insurance) contended that the Tribunal failed to consider that FIR was lodged only against the driver of the car belonging to the first respondent. In M.C.O.P. No.177 of 2011, the respondents 3 & 4 are not parties. The third party examined as P.W.5 who is the only eye-witness and defacto complainant in FIR has stated that the lorry was parked with red light on left side of the road and only the car dashed against the parking lorry. P.W.5 denied in cross examination that lorry was not parked with red light http://www.judis.nic.in 11 and accident would not have occurred if the lorry had been parked on the left side of the road. The Tribunal failed to consider the evidence of R.W.2, the driver of the lorry in proper perspective and failed to consider Ex.R1 – rough sketch which clearly shows that the lorry was parked on the extreme left side of the road. In any event, the amount awarded by the Tribunal is excessive.
10. The learned counsel appearing for the second respondent (Royal Sundaram Alliance Insurance) contended that in the F.I.R itself, P.W.5 has stated that the lorry was parked without parking light. The Tribunal, considering Ex.P1 – F.I.R. and evidence of P.W.5 has held that both the drivers are negligent and apportioned the liability equally and they have not file any appeal against the award. The Tribunal, considering the evidence of P.W.5 & R.W.2 and F.I.R., held that both the drivers are liable to pay the compensation. CMA Nos.1110 & 1111 of 2017
11. The learned counsel appearing for the third party contended that the third party has proved that she is the legally wedded wife of the deceased by producing Ex.P.21 and the marriage between the third party and the deceased was validly registered. http://www.judis.nic.in 12 The marriage between third party and deceased was conducted under Christian Marriage Act and certificate has been issued by the person authorised to conduct the marriage under Section 62 of Indian Christian Marriage Act and Tribunal ought to have presumed marriage as per Section 114 of Evidence Act. The first petitioner in M.C.O.P.No.90 of 2010 has not produced any such certificate with regard to her marriage with the deceased. The Tribunal failed to consider that Civil Proceedings are pending with regard to legalheirship of the deceased and appeal filed by the third party is pending.
12. Per contra, the learned counsel for the claimants contended that the claimants have proved the marriage between the first claimant and the deceased by producing Ex.P3 – marriage certificate dated 29.08.2009. The marriage certificate and connected documents produced by third party are cooked up documents, the first claimant is the legally wedded wife, the second claimant and sixth respondent are daughters, the fifth respondent is the mother of the deceased. The respondents 5 & 6 in the counter have stated that only first claimant is the legally wedded wife of the deceased. The Tribunal, considering the pleadings, both oral and http://www.judis.nic.in 13 documentary held that the accident occurred due to negligence of both the drivers and awarded compensation to the claimants and respondents 5 & 6 holding that third party failed to prove the marriage with the deceased and dismissed the claim petition MCOP No.177 of 2011 filed by the third party. Only on proper appreciation of evidence, the Tribunal has passed the award and prayed for dismissal of the appeals.
13. Heard the learned counsel appearing for the parties and perused the materials available on record.
Conclusion :
14. The contention of the learned counsel for the fourth respondent (Bajaj Allianz General Insurance Company) that the Tribunal erred in fixing 50% of liability on the driver of the lorry is contrary to the evidence of P.W.5. From the award of the Tribunal, it is seen that the third party in the F.I.R has stated that the driver of the car drove the car in a rash and negligent manner and also the lorry was parked without any parking light. In the claim petition, MCOP No.177 of 2011 filed by the third party, she has not stated that lorry was parked with indicator. Only in the proof affidavit, she http://www.judis.nic.in 14 has stated that lorry was parked with indicator. She has admitted in the cross examination that she has not stated in the claim petition that lorry was parked with indicator. The driver of the lorry who was examined as R.W.2 deposed that he has driven the lorry on the same road on number of occasions and admitted that there is a service road where the drivers park their vehicle to take rest. Knowing fully well that there is a service road, he has not stated that why he had parked the lorry in the main road. Ex.R1 – xerox copy of the rough sketch does not advance the case of the fourth respondent that the lorry was parked on the extreme left side of the road. The Tribunal, considering Ex.P.1 and evidence of P.W.5 and R.W.2 in its entirety has concluded that both the drivers are responsible for the accident. There is no error in the said finding.
15. As far as quantum of compensation is concerned, the claimants have proved by examining P.W.2 that deceased was working as a teacher in Hindu Nadar High School, Kulathur, Vilathikulam Taluk and was earning Rs.25,000/- per month. Even though respondents 2 & 4 have contended that deceased was not working at the time of accident and he has opted for VRS, they have not let in any evidence to prove their contention. The compensation http://www.judis.nic.in 15 awarded by the Tribunal under different heads are not exorbitant and hence the same are confirmed.
16. As far as appeals filed by the third party is concerned, she claims to be the legally wedded wife of the deceased. To substantiate her claim, she has filed Ex.P.21 – marriage certificate. According to the third party, she got married to deceased in a church at Chennai. In the cross examination, she has deposed that she could not remember the name of the church in which she got married. The Tribunal, considering Ex.P.21 – marriage certificate which was found with number of mistakes, held that said certificate is a fabricated one. In addition to the same, the third party had admitted that deceased has filed IDOP before the District Court, Tuticorin for divorce against the first claimant. If the first claimant is not the wife of the deceased, as contended by the third party, there is no necessity for the deceased to file IDOP for divorcing the first claimant. The Tribunal, for the above reason has held that third party is not the dependent of the deceased and she is not entitled to claim any compensation.
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17. The Tribunal, considering all the materials on record in proper perspective held that both the drivers of respondents 1 & 3 are equally negligent for the accident and held that respondents 2 & 4 are liable to pay 50% each of the compensation. The Tribunal held that claimants 1 & 2 and respondents 5 & 6 are entitled to compensation and third party is not entitled to any compensation. The Tribunal has given cogent and valid reason for the said finding. There is no perversity in the impugned award of the Tribunal warranting interference by this Court.
18. In the result, all the appeals are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
02.11.2018
Internet :yes
Index :Yes
Speaking / Non-speaking order
To
The Additional District Court,
Fast Track Court No.I,
Thoothukudi.
http://www.judis.nic.in
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V.M.VELUMANI,J.
rgr
C.M.A(MD)No.1015 of 2012 & 1110 & 1111 of 2017 02.11.2018 http://www.judis.nic.in