National Insurance Co.Ltd., Vs. 1.Sivanandan. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1167305
CourtChennai High Court
Decided OnJul-31-2013
JudgeR.KARUPPIAH
AppellantNational Insurance Co.Ltd.,
Respondent1.Sivanandan.
Excerpt:
before the madurai bench of madras high court dated:31. 07/2013 coram the honourable mr.justice r.karuppiah c.m.a.(md)no.1311 of 2009 and m.p.(md)no.1 of 2009 national insurance co.ltd., rep.by its branch manager, anguvilas buildings, agastheeswaram taluk nagercoil village, kanyakumari district. .. appellant / 3rd respondent in o.p. vs 1.sivanandan .. 1st respondent / petitioner in op2issac 3.j.john samuel .. respondents 2 and 3 / respondents 1 & 2 in o.p prayer this civil miscellaneous appeal is filed under section 173 of motor vehicles act, 1988, against the award and decree, dated 09.06.2009 made in m.c.o.p.no.109 of 2006 on the file of motor accidents claims tribunal (ii addl.sub court) nagercoil. !for appellant ... mr.s.srinivasa raghavan ^for respondent-1 ... mr.k.p.narayanakumar for respondents ... mr.mayil vahana rajendran (r2 and r3) :judgment this civil miscellaneous appeal is filed by the appellant insurance company, it is the 3rd respondent in the above said o.p., as against the award and decree, dated 09.06.2009 made in m.c.o.p.no.109 of 2006 on the file of motor accidents claims tribunal (ii addl.sub court) nagercoil.2. the first respondent herein / claimant in the above said o.p., filed a claim petition for compensation of rs.2,00,000/- and in the claim petition it is stated that on 27.10.2005 at about 20.50 hours, the injured claimant was riding his motorcycle bearing reg.no.tn-74-y-0123 at nagercoil to trivandrum highway road by observing all the traffic regulations from east to west with normal speed and when he reached in front of manju nursing home, marthandam, the first respondent in the above said o.p. i.e., the rider of the 2nd respondent' vehicle viz., two wheeler, bearing reg.no.tn-74-e-0277 in a rash and negligent manner without observing the traffic rules and regulations and without sounding horn dashed against the claimant's vehicle. in the above said accident, the claimant was sustained injuries and taking treatment at ramakrishna hospital, marthandam from 27.10.2005 to 05.11.2005 as in patient and from 05.11.2005 till the date of claim petition was taking treatment as out patient and he sustained 15% disability and therefore, claimed compensation of rs.2,00,000/- from the driver, owner and insurer of the vehicle.3. the respondents 1 and 2 in the o.p., filed separate counter in which it is admitted that the accident was occurred only due to rash and negligent driving of the first respondent, who is the driver of the 2nd respondent vehicle and also stated that the 2nd respondent vehicle was duly insured with the 3rd respondent insurance company and therefore, the appellant / 3rd respondent the insurance company is liable to pay compensation.4. the appellant insurance company filed separate counter in which it is stated that the actual rider of the motor bike is j.john samuel i.e., the owner of the vehicle viz., the 2nd respondent, since he has no valid driving licence by playing fraud with the connivance of the police officials viz., one issac, who is the close friend of john samuel is included as rider and therefore, the claim is a fake one. further averred in the counter that the claimant should prove the alleged occurrence as stated in the claim petition and also should prove the nature of injuries, disability, income, avocation and further stated the claim of compensation on various heads are highly excessive.5. before the tribunal, on the side of the claimant examined two witnesses as p.ws.1 and 2 and marked 13 documents as exs.p1 and p13 and marked 13 documents as ex.p1 and p13. on the side of the appellant insurance company examined one witnesses as r.w.1 namely, meiappan, and marked four documents as exs.r1 to r4.6. the tribunal, after considering the above said oral and documentary evidence adduced on either side, finally held that the accident was occurred only due to rash and negligent driving of the first respondent, who is the rider of the 2nd respondent vehicle and the above said vehicle duly insured with the appellant insurance company and therefore, the appellant insurance company is liable to pay compensation. with regard to quantum of compensation, the tribunal has awarded a total compensation by rs.92,196/- with 9% interest.7. the appellant insurance company filed this civil miscellaneous appeal challenging the liability and also the rate of interest. with regard to quantum of compensation awarded in other heads not seriously challenged.8. with regard to liability, the learned counsel appearing for the appellant insurance company submitted that at the time of accident, the 2nd respondent vehicle was driven by the owner of the motor cycle i.e., the 2nd respondent himself driven the vehicle, but he has no valid driving licence and hence, colluded with police official, the first respondent in the o.p. impleaded as the rider of the motor cycle and committed fraud and therefore, the insurance company is not liable to pay compensation. the learned counsel appearing for the appellant further pointed out that in ex.r3, letter sent by owner of the vehicle, viz., the 2nd respondent, to the insurance company in which it is stated that the 2nd respondent was the rider of the vehicle at the time of accident. immediately on 26.01.2007. he has again sent a letter as if the first respondent in the o.p. was rider of the motorcycle. therefore, the 2nd respondent alone was the rider of the motorcycle at the time of accident and he has no valid driving licence at the time of accident and hence, the insurance company is not liable to pay compensation.9. on the side of the claimant, the injured claimant himself deposed as p.w.1 and also marked ex.p1 copy of fir; ex.p2 copy of m.v. report; ex.p3 copy of observation mahazar; ex.p4 copy of criminal court judgment and ex.p6 copy of rough sketch.10. a perusal of the above said oral and documentary evidence reveal that the concerned police registered a criminal case as against the first respondent in the o.p. immediately i.e., next day of accident and after investigation filed final report and the first respondent in the o.p. also admitted the offence and paid fine amount on 23.11.2005 itself, as per ex.p5 copy of criminal court judgment. 11.the learned counsel for the appellant mainly relied on ex.r3, letter dated 16.01.2007. a perusal of ex.r3 letter, in the first para itself it is stated that at the time of accident the rider of the motor cycle is the first respondent viz., a.issac and only in para 2, by mistake it is mentioned as he himself driven the vehicle. taking advantage of the above said clerical mistake in the letter, the appellant has contended that the 2nd respondent / owner of the vehicle himself was the rider of the motorcycle. immediately after ex.r3, letter, on 26.01.2007 itself the above said clerical error in ex.r3 letter has corrected and informed by ex.r3 notice, to the insurance company. therefore, from the admission in the criminal case and judgment, oral evidence of p.w.2 and also exs.r3 and r4 clearly proved that at the time of accident, the first respondent in the o.p. alone is rider of the motorcycle and not 2nd respondent / owner of the motorcycle. therefore, the contention of the appellant insurance company cannot be accepted.12. with regard to rate of interest, the tribunal has awarded 9% interest per annum. the learned counsel appearing for the appellant submitted that during the relevant period of accident, the relevant rate of interest only 7.5% per annum and therefore, prayed to reduce the rate of interest.13. the learned counsel appearing for the claimant has not produced any materials to show that at the time of accident the prevailing rate of interest is 9%, as awarded by the tribunal. considering the period of accident and relevant rate of interest at that time, the rate of interest is to be reduced from 9% to 7.5%. in other aspects, the tribunal has correctly passed an award for all heads and hence, the total award amount passed by the tribunal is just and reasonable, no need to interfere with the above said findings.14. in the result, this civil miscellaneous appeal is partly allowed and the award amount passed by the tribunal is confirmed and only the rate of interest alone is reduced from 9% to 7.5% and the award is modified accordingly. it is reported that the appellant deposited 50% of the award amount. therefore, the appellant insurance company is directed to deposit the balance award amount with proportionate interest and costs within a period of four weeks from the date of receipt of a copy of this order. the first respondent / claimant is permitted to withdraw the same by making necessary application. no costs. consequently, connected miscellaneous petition is closed. 31.07.2013 mpk to the motor accidents claims tribunal (ii addl.sub court) nagercoil.
Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

31. 07/2013 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH C.M.A.(MD)No.1311 of 2009 and M.P.(MD)No.1 of 2009 National Insurance Co.Ltd., Rep.by its Branch Manager, Anguvilas Buildings, Agastheeswaram Taluk Nagercoil Village, Kanyakumari District. .. Appellant / 3rd Respondent in O.P. Vs 1.Sivanandan .. 1st Respondent / petitioner in OP2Issac 3.J.John Samuel .. Respondents 2 and 3 / Respondents 1 & 2 in O.P PRAYER This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Award and Decree, dated 09.06.2009 made in M.C.O.P.No.109 of 2006 on the file of Motor Accidents Claims Tribunal (II Addl.Sub Court) Nagercoil. !For Appellant ... Mr.S.Srinivasa Raghavan ^For Respondent-1 ... Mr.K.P.Narayanakumar For Respondents ... Mr.Mayil Vahana Rajendran (R2 and R3) :JUDGMENT

This Civil Miscellaneous Appeal is filed by the appellant Insurance Company, it is the 3rd respondent in the above said O.P., as against the Award and Decree, dated 09.06.2009 made in M.C.O.P.No.109 of 2006 on the file of Motor Accidents Claims Tribunal (II Addl.Sub Court) Nagercoil.

2. The first respondent herein / claimant in the above said O.P., filed a claim petition for compensation of Rs.2,00,000/- and in the claim petition it is stated that on 27.10.2005 at about 20.50 hours, the injured claimant was riding his motorcycle bearing Reg.No.TN-74-Y-0123 at Nagercoil to Trivandrum Highway Road by observing all the traffic regulations from East to West with normal speed and when he reached in front of Manju Nursing Home, Marthandam, the first respondent in the above said O.P. i.e., the rider of the 2nd respondent' vehicle viz., two wheeler, bearing Reg.No.TN-74-E-0277 in a rash and negligent manner without observing the traffic rules and regulations and without sounding horn dashed against the claimant's vehicle. In the above said accident, the claimant was sustained injuries and taking treatment at Ramakrishna Hospital, Marthandam from 27.10.2005 to 05.11.2005 as in patient and from 05.11.2005 till the date of claim petition was taking treatment as out patient and he sustained 15% disability and therefore, claimed compensation of Rs.2,00,000/- from the driver, owner and insurer of the vehicle.

3. The respondents 1 and 2 in the O.P., filed separate counter in which it is admitted that the accident was occurred only due to rash and negligent driving of the first respondent, who is the driver of the 2nd respondent vehicle and also stated that the 2nd respondent vehicle was duly insured with the 3rd respondent Insurance Company and therefore, the appellant / 3rd respondent the Insurance Company is liable to pay compensation.

4. The appellant Insurance Company filed separate counter in which it is stated that the actual rider of the motor bike is J.John Samuel i.e., the owner of the vehicle viz., the 2nd respondent, since he has no valid driving licence by playing fraud with the connivance of the Police Officials viz., one Issac, who is the close friend of John Samuel is included as rider and therefore, the claim is a fake one. Further averred in the counter that the claimant should prove the alleged occurrence as stated in the claim petition and also should prove the nature of injuries, disability, income, avocation and further stated the claim of compensation on various heads are highly excessive.

5. Before the Tribunal, on the side of the claimant examined two witnesses as P.Ws.1 and 2 and marked 13 documents as Exs.P1 and P13 and marked 13 documents as Ex.P1 and P13. On the side of the appellant Insurance Company examined one witnesses as R.W.1 namely, Meiappan, and marked four documents as Exs.R1 to R4.

6. The Tribunal, after considering the above said oral and documentary evidence adduced on either side, finally held that the accident was occurred only due to rash and negligent driving of the first respondent, who is the rider of the 2nd respondent vehicle and the above said vehicle duly insured with the appellant Insurance Company and therefore, the appellant Insurance Company is liable to pay compensation. With regard to quantum of compensation, the Tribunal has awarded a total compensation by Rs.92,196/- with 9% interest.

7. The appellant Insurance Company filed this Civil Miscellaneous Appeal challenging the liability and also the rate of interest. With regard to quantum of compensation awarded in other heads not seriously challenged.

8. With regard to liability, the learned counsel appearing for the appellant Insurance Company submitted that at the time of accident, the 2nd respondent vehicle was driven by the owner of the motor cycle i.e., the 2nd respondent himself driven the vehicle, but he has no valid driving licence and hence, colluded with police official, the first respondent in the O.P. impleaded as the rider of the motor cycle and committed fraud and therefore, the insurance Company is not liable to pay compensation. The learned counsel appearing for the appellant further pointed out that in Ex.R3, letter sent by owner of the vehicle, viz., the 2nd respondent, to the Insurance Company in which it is stated that the 2nd respondent was the rider of the vehicle at the time of accident. Immediately on 26.01.2007. he has again sent a letter as if the first respondent in the O.P. was rider of the motorcycle. Therefore, the 2nd respondent alone was the rider of the motorcycle at the time of accident and he has no valid driving licence at the time of accident and hence, the Insurance Company is not liable to pay compensation.

9. On the side of the claimant, the injured claimant himself deposed as P.W.1 and also marked Ex.P1 copy of FIR; Ex.P2 copy of M.V. Report; Ex.P3 copy of Observation Mahazar; Ex.P4 copy of Criminal Court Judgment and Ex.P6 copy of Rough Sketch.

10. A perusal of the above said oral and documentary evidence reveal that the concerned police registered a criminal case as against the first respondent in the O.P. immediately i.e., next day of accident and after investigation filed final report and the first respondent in the O.P. also admitted the offence and paid fine amount on 23.11.2005 itself, as per Ex.P5 copy of criminal Court Judgment. 11.The learned counsel for the appellant mainly relied on Ex.R3, letter dated 16.01.2007. A perusal of Ex.R3 letter, in the first para itself it is stated that at the time of accident the rider of the motor cycle is the first respondent viz., A.Issac and only in para 2, by mistake it is mentioned as he himself driven the vehicle. Taking advantage of the above said clerical mistake in the letter, the appellant has contended that the 2nd respondent / owner of the vehicle himself was the rider of the motorcycle. Immediately after Ex.R3, letter, on 26.01.2007 itself the above said clerical error in Ex.R3 letter has corrected and informed by Ex.R3 notice, to the Insurance Company. Therefore, from the admission in the criminal case and judgment, oral evidence of P.W.2 and also Exs.R3 and R4 clearly proved that at the time of accident, the first respondent in the O.P. alone is rider of the motorcycle and not 2nd respondent / owner of the motorcycle. Therefore, the contention of the appellant Insurance Company cannot be accepted.

12. With regard to rate of interest, the Tribunal has awarded 9% interest per annum. The learned counsel appearing for the appellant submitted that during the relevant period of accident, the relevant rate of interest only 7.5% per annum and therefore, prayed to reduce the rate of interest.

13. The learned counsel appearing for the claimant has not produced any materials to show that at the time of accident the prevailing rate of interest is 9%, as awarded by the Tribunal. Considering the period of accident and relevant rate of interest at that time, the rate of interest is to be reduced from 9% to 7.5%. In other aspects, the Tribunal has correctly passed an award for all heads and hence, the total Award amount passed by the Tribunal is just and reasonable, no need to interfere with the above said findings.

14. In the result, this Civil Miscellaneous Appeal is partly allowed and the Award amount passed by the Tribunal is confirmed and only the rate of interest alone is reduced from 9% to 7.5% and the award is modified accordingly. It is reported that the appellant deposited 50% of the Award amount. Therefore, the appellant Insurance Company is directed to deposit the balance award amount with proportionate interest and costs within a period of four weeks from the date of receipt of a copy of this order. The first respondent / claimant is permitted to withdraw the same by making necessary application. No costs. Consequently, connected miscellaneous petition is closed. 31.07.2013 MPK To The Motor Accidents Claims Tribunal (II Addl.Sub Court) Nagercoil.