1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/2/2012 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH C.M.A(MD)NO.43 of 2008 and M.P.(MD)No.1 of 2012 Royal Sundaram Alliance Insurance Company Limited rep. Through its Branch Manager 46 Whites Road Chennai. ... Appellant/Respondent 3 Vs 1. R. Banumathi 2. Minor R.Munnodi Raja 3. Minor R.Kaladevi ...Respondents 1 to 3/Petitioners (Minors are rep. by their Mother 1st Respondent) 4. S. Kannan 5. P. Kalimuthu ...4 & 5th Respondents/Respondent 1 & 2 PRAYER : Civil Miscellaneous Appeal is filed against the fair and decreetal order dated 25.7.2007 made in M.C.O.P.No.40 of 2005 on the file of the Motor Accident Claims (Principal District Judge), Srivilliputhur. For Appellant : Mr.S.Srinivasa Raghavan For Respondents 1 to 3 : Mr.M.Jothi Basu. J U D G M E N T This appeal is filed by the appellant-Insurance Company challenging the award dated 25/7/2007 made in M.C.O.P.No.40 of 2005 on the file of the Motor Accidents Claims Tribunal (Principal District Judge), Srivilliputhur. 2. The brief facts which are necessary to decide the issue involved in the appeal are as follows: (i). The first respondent herein is the wife of the deceased. The respondents 2 and 3 are the minor children of the first respondent and deceased. (ii). It is the case of the respondents 1 to 3/claimants before the Tribunal that on 2/10/2004, when the deceased was proceeding in TN67W- 5088 along with another person viz., Vairamuthu, from Sivakasi to Thiruvannamalai Temple, an auto rickshaw bearing Registration No.TN67R- 8132 was going in front of the said two wheeler and at that time, a two wheeler bearing Registration No.TN67Q-2342 was coming in the opposite direction. The deceased, while he was overtaking the autorickshaw going ahead of him was hit by the two-wheeler bearing Registration No.TN67Q- 2342, which was coming in the opposite direction from west to east and when the deceased tried to apply break, it has resulted in skidding and swerving of the two wheeler and in that process, the deceased dashed https://hcservices.ecourts.gov.in/hcservices/ 2 against the side box of the two wheeler bearing Registration No.TN67Q- 2342 which was coming from opposite direction. In the said accident, the deceased got wounded severely in his head and other parts of his body. Subsequently, the deceased was taken to the hospital, where he was declared to have been brought dead. Hence, the respondents 1 to 3 made a claim as against the owner of the two wheeler bearing Registration No.TN67Q-2342 and the insurer, the appellant herein. 3. The case of the respondents/claimants was resisted by the Insurance Company by taking a specific defence that the manner of the accident described in the claim petition is not correct and the accident had occurred only due to the rash and negligent act of the deceased. Therefore, no negligence could be fixed on the part of the insured vehicle and as such the insurance company is not liable to pay any compensation to the respondents 1 to 3 herein. The claim was made, by the Respondents herein implicating the insured vehicle falsely only in order to get the compensation from the Insurance Company and thus, the appellant insurance company prayed for the dismissal of the claim petition. 4. In order to prove the claim on the side of the first respondent/claimant, the first respondent examined herself as P.W.1, besides examining the pillion rider of the two wheeler viz., Vairamuthu as P.W.2 and five documents were marked as Exs.P1 to P5. On the side of the appellant-Insurance Company, three witnesses were examined as R.W.1 to R.W.3 and five documents were marked as Exs.R.1 to R.5. The Tribunal after analysing the entire evidence, has come to the conclusion that the accident had accured due to the rash and negligent driving of the two wheeler bearing Registration No.TN67Q-2342 insured with the appellant/Insurance Company and thus directed the appellant/Insurance Company to pay the compensation amount arrived by it. Aggrieved over the same, the present appeal has been filed. 5. The learned counsel for the appellant-Insurance Company submitted that from the reading of the claim petition by itself would show that the accident had occurred only when the deceased attempted to overtake the autorickshaw without sounding the horn and without giving any proper signal and also not following the traffic rules, in a rash and negligent manner. Moreover, on the side of the appellant, the rider of the insured vehicle was examined as R.W.1 and a criminal case was filed against the rider of the insured vehicle which also ended in acquittal. Hence by considering all these aspects, the Tribunal ought to have dismissed the claim petition in toto. 6. Keeping the submissions made by the learned counsel appearing on either side I have perused the materials available on record. 7. It is the main submission of the learned counsel for the appellant that in the claim petition, it has been clearly stated that at the time of the accident, the victim was making an attempt to overtake the autorickshaw and hence based on the said statement, the Tribunal ought to have come to the conclusion that the accident had occurred due to the rash and negligent act of the deceased alone. Moreover, on the side of the appellant/Insurance Company, the criminal Court's judgment was marked as Ex.R.3 to prove that the rider of the insured vehicle was https://hcservices.ecourts.gov.in/hcservices/ 3 acquitted by the Criminal Court. Further, the deposition of the pillion rider recorded before the Criminal Court was marked as Ex.R.1. A combined reading of Exs.R.1 and R.3 and the statement made in the claim petition would show that the rider of the insured vehicle is not at fault in causing the accident. Thus, the learned counsel for the appellant submitted that by considering all these aspects, claim petition ought to have been dismissed, but I am not inclined to accept the said submission of the learned counsel for the appellant for the reason that the Criminal Court proceedings cannot have any bearing over the proceedings before the Motor Accident Claims Tribunal. Before the Motor Accident Claims Tribunal, the appellant ought to have proved the case by examining independent witnesses. Though the learned counsel for the appellant submitted that the accident had occurred when the deceased made an attempt to overtake an autorickshaw, the crucial document such as accident plan was not marked in this case. Moreover, no favourable reply to the case of the appellant/Insurance Company was brought out and in cross-examination of P.W.2. Under such circumstances, I do not find any infirmity in the conclusion arrived at by the claim based on the evidence of R.W.2 that the accident is the result of the insured vehicle alone. 8. In my considered opinion, the appellant has not established their defence with tangible evidence. Since it has been stated in the claim petition at the time of accident, the deceased was making an attempt to overtake an auto, it does not mean that the accident had occurred only due to the negligent act of the deceased. Therefore, I am not inclined to accept the submissions made by the learned counsel for the appellant based on the statement made in the claim petition. I do not find any infirmity in the findings rendered by the trial Court and accordingly, this Appeal stands dismissed. 9. In view of the above, the appellant/Insurance company is directed to deposit the entire amount with accrued interest within a period of six weeks from the date of receipt of a copy this order. On such deposits being made, the first respondent is permitted to withdraw her respective shares with the proportionate interest. So far as, the second and third respondents are concerned, the Tribunal is directed to deposit the same in any one of the Nationalized Bank till the minor appellants attains majority. The mother of the minors are permitted to withdraw the accrued interest on the said deposit once in three months. Sd/- Assistant Registrar (Records) / True Copy / Sub Assistant Registrar To The Motor Accident Claims Tribunal, (Principal District Judge), Srivilliputhur. +1CC TO MR.S.SRINIVASARAGHAVAN, ADVOCATE SR : 5078 +1CC TO MR.M.JOTHIBASU, ADVOCATE SR : 5388 Mvs SR : 30.03.2012 : 3p/4c C.M.A(MD)NO.43 of 2008 20/2/2012 https://hcservices.ecourts.gov.in/hcservices/