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2012 Supreme(Mad) 3427
High Court of Judicature at Madras
P. DEVADASS, J.
The Divisional Manager, The New India Assurance Co. Ltd., Kancheepuram.
Versus
A. Lakshmi & Others
C.M.A.No.2616 of 2007 and M.P.No.1 of 2007
Decided On : 03-08-2012
For the Appellant:N.Vijayaraghavan, Advocates.
For the Respondent:R1 & R5, V.Jaganathan, Advocate, R6 & R7, Exparte.
The liability of the insurance company to pay compensation is determined based on the cause of the accident, as established by the evidence and witness testimony.
Headnote:
Negligence - Insurance - Road Accident - Summary: The court upheld the award of the Tribunal, ruling that the accident was the result of rash and negligent driving of the insured motorbike by the pillion-rider, not the deceased. The insurance company's liability to pay compensation was confirmed.
Fact of the Case:
The road accident resulted in the death of Andavan, and the claimants, who are his dependents, sought compensation from the Insurance Company. The company disputed the negligence question and its liability to pay compensation.
Finding of the Court:
The court analyzed the evidence and found that the accident was caused by the negligent driving of the insured motorbike by the pillion-rider, not the deceased. The Tribunal's award was upheld, and the insurance company was ordered to deposit the compensation amount.
Issues: Dispute over negligence and liability of the Insurance Company to pay compensation.
Ratio Decidendi: The court determined that the accident was caused by the negligent driving of the insured motorbike by the pillion-rider, based on the analysis of evidence and witness testimony.
Final Decision: The Civil Miscellaneous Appeal was dismissed, upholding the award of the Tribunal. The insurance company was ordered to deposit the compensation amount within four weeks.
In this appeal, the Insurance Company, namely, New India Assurance Company, mainly disputes the negligence question, consequently, its liability to pay the compensation amount to the claimants under the award of the Tribunal.
2. It is not in dispute that the road accident had taken place on 14.4.2002. It is also not in dispute that Andavan died of injuries sustained in the road accident. Claimants 1 to 5, who are respondents 1 to 5 in this appeal are dependents of the deceased.
3. The Yamaha motor bike TN 21 W 2046 is involved in this accident belongs to 7th respondent. At the time of accident, there is policy coverage for this vehicle with the appellant. Totally, the Tribunal had awarded Rs.4,92,000/-.
4. According to the learned counsel for the appellant, at the time, when the accident took place, actually the motor bike was driven by Andavan, (deceased) and Mannar (6th respondent) had travelled in the bike only as a pillion-rider. The very accident was due to the rash and negligent riding of the bike by the deceased. So, for his own negligence, compensation cannot be granted.
5. However, the learned counsel for the claimants would contend that the oral and documentary evidence let in and the evidence of P.W.2 would clearly show that at the time of accident, the bike was driven by the said Mannar. Since the pillion-rider Andavan was seriously wounded, Mannar gave the FIR with coloured version.
6. Now from the rival submissions, what is to be seen is that at the time of accident, the Yamaha motor bike was driven by whom, whether it was by Andavan or by Mannar?
7. The fact that on 14.4.2002, at about 2.30 p.m., on the Vellore-Chennai High Road, near Pulianthangal village, the road accident had taken place is not controverted. At that time, the Yamaha bike carried Andavan and Mannar is also not controverted.
8. The FIR, Ex.P.1 has been lodged by Mannar wherein he had stated that at the time of accident, the bike was driven by Andavan and he had travelled in it only as a pillion-rider. Mannar has not been examined as a witness in this case.
9. The Insurance Company had examined R.W.1, Rajasekaran. He had not seen the accident. The company also examined R.W.2, Ekambaram, Head Constable. He had also not seen the accident. Their evidence would not show that actually at the time of accident who had driven the motor bike.
10. Since in the FIR, the deceased Andavan had been named as an accused and as he died, the charge(allegation) against him abated and thus, the Police has closed the case and filed Ex.R1 Negative Final Report. Police did not file positive Final Report after collecting evidence that deceased Andavan had driven the motor bike and he had caused the accident. Even then the Tribunal has to determine independently the question of negligence based on the evidence adduced before it.
11. In this case, P.W.1, Lakshmi, the first claimant, is the widow of the deceased. She is not an eye witness to the accident. Her evidence is not helpful to resolve the controversy before us. The next witness, P.W.2, Mariadoss has been examined as an eye witness to the occurrence. He is an independent person.
12. Admittedly, in this accident, Andavan sustained serious head injury and he died out of that. Mannar, the 6th respondent did not sustain any major injury. According to P.W.2, at the time of accident, he was riding his bicycle and the motor bike came from the opposite direction, since the bike rider had applied sudden brake the bike capsized into a road side ditch, the rider of the bike sustained simple injury, however, the pillion-rider sustained serious head injury and shed blood profusely. We recall here again that Andavan had sustained serious head injury and Mannar did not suffer any notable injury. During his cross-examination, P.W.2 had also stated that when he questioned the bike rider, he told him that he is Mannar.
13. The bike owner, Sathish Kumar (7th respondent) and Mannar (6th respondent) have remained exparte. T
