IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.8.2008
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
C.M.A.No.1931 of 2000
N.Munuswamy Naidu. ... Appellant/1st Respondent
vs.
1.Smt.Vijaya,
2.Minor Dhanalakshmi,
3.Minor Venkateswaran,
4.United India Insurance Company Ltd.,
No.38, Anna Salai, Madras-2.
(Minor respondents 2 and 3 are
represented by their mother
1st respondent Smt.Vijaya). ... Respondents/Petitioners 1 to 2
and 2nd respondent
Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 24.12.1999 passed in M.C.O.P.No.218 of 1991 on the file of the Motor Accidents Claims Tribunal (Sub Court), Poonamallee.
For appellant : Mr.N.Vijayaraghavan,
for Mr.Srinivasa Ramalingam
For respondents : Mr.P.D.Selvaraj for R1 to R3,
: Mr.S.Arunkumar for R4
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JUDGMENT
The owner of the vehicle is on appeal challenging the award dated 24.12.1999 passed in M.C.O.P.No.218 of 1991 on the file of the Motor Accidents Claims Tribunal (Sub Court), Poonamallee.
2. It is a case of fatal accident. The brief facts of the case are as follows:- The accident in this case happened on 21.8.1990 at about 7.00 p.m. The deceased Vinoba alias Palanichamy, aged 30 years engaged in gunny bag business, was riding a cycle on M.T.H. Road, Chennai, when he was hit by a lorry bearing Registration No.TDH 3900 driven by its driver in a rash and negligent manner. The said lorry was insured with the United India Insurance Company. In the accident the said Vinoba alias Palanichamy died. On the death of the said person, the wife aged 25 years, minor daughter aged 5 years and minor son aged 1 year filed a claim for compensation in a sum of Rs.2 lakhs stating that the deceased was earning Rs.2,000/- per month.
3. In support of the claim, the wife of the deceased was examined as P.W.1. One Thiru Chandrasekaran, the eye witness was examined as P.W.2. One Thiru Selvam, engaged in gunny bag business along with the deceased was examined as P.W.3. Exs.P-1 to P-3 were marked. The details of the documents are as follows:-
Ex.P-1 is the F.I.R.,
Ex.P-2 is the legal heir certificate dated 25.9.1990 and
Ex.P-3 is the post-mortem certificate.
On behalf of the 4th respondent insurance company one Thiru V.Soundararajan, senior clerk, was examined as R.W.1. Claim Form in respect of the vehicle was marked as Ex.R-1.
4. Based on the oral and documentary evidence on record, the Tribunal held that the driver of the lorry was responsible for the accident and consequently, the insurance company was held liable to compensate the claimants. A sum of Rs.1,56,000/- was granted as compensation with interest at 12%.
5. The owner of the vehicle filed the present appeal, challenging the award questioning the very accident. However, this Court passed an order on 12.12.2000 directing the appellant to deposit the entire award amount and on such deposit the first claimant was permitted to withdraw 50% of the award amount. Since the claimants 2 and 3 are minors the first claimant was permitted to withdraw interest accrued on the share of the minors once in six months. The fourth respondent insurance company for and on behalf of the owner of the vehicle deposited the entire award amount.
6. Counsel for the respondents 1 to 3/claimants contended that since the insurance company has not filed appeal and deposited the entire award amount without demur, the appeal filed by the owner of the vehicle is not maintainable. On this short question, the appeal has to be decided as there is no serious dispute insofar as the quantum of compensation.
7. The basic concept of Motor Vehicle’s Act is that unless the owner is made liable for the act of tort by the driver of the offending vehicle, the question of insurer being statutorily liable to pay compensation will not arise. The liability of the insurer arises only when the liability of the insured has been upheld. Reliance is placed on the decision of the Apex Court decision in Oriental Insurance Co. Ltd., – vs. – Sunita Rathi and others reported in 1998 ACJ 121 (three Judges). Relevant portion reads as follows:-
“The liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. There is, thus, a basic fallacy in the conclusion reached by the High Court on this point.”
Further, in Narendra Kumar and another vs. – Yarenissa and others reported in 1998 ACJ 244, the Apex Court held in paragraph 7 as follows:-
“7. For the reasons stated above, we are of the opinion that even in the case of a joint appeal by the insurer and owner of offending vehicle if an award has been made against the tortfeasors as well as the insurer even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause-title is suitably amended by deleting the name of the insurer.”
In such view of the matter, the appeal filed by the owner of the vehicle is maintainable in law.
8. As far as the merits of the case is concerned, the claimants have proved their case by relying upon the oral and documentary evidence, viz., eye witness and the F.I.R. lodged as against the driver of the offending vehicle. The insurance company examined one senior clerk, who marked a claim form stating that no accident as alleged happened. It is pertinent to note that the owner of the vehicle did not appear before the court below in spite of having been noticed and no evidence was let in. In any event, the F.I.R. clearly reveals that the accident was caused by the vehicle, namely, the lorry.
9. In the absence of any clear material to support the case of the appellant that it is a case of no accident by his vehicle, this court is not able to accept the appellant’s contention that the vehicle was not involved in the accident.
10. In the result, the Civil Miscellaneous Appeal is dismissed. No order as to costs. The claimants are entitled to withdraw the balance amount in deposit with interest as per order the Tribunal.
26.8.2008
ts
To
1.The Subordinate Judge,
(Motor Accidents Claims Tribunal),
Poonamallee.
R.SUDHAKAR,J.
ts
Judgment in
C.M.A.No.1931 of 2000
26.8.2008