C.M.A.No.2956 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 13.03.2023

Pronounced on : 31.07.2023

CORAM:

THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI

C.M.A.No.2956 of 2019

1.Thangammal

2.Umamaheswari

3.Karnan

... Appellants

vs.

1.Jasbir Singh

2.National Insurance Company Limited,

Chennai 600 040.

... Respondents

PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of

the Motor Vehicles Act, against the Decree and Judgment dated

17.04.2013 made in M.C.O.P.No.115 of 2009 on the file of Motor

Accidents Claims Tribunal, (Subordinate Judge), Tiruchengode.

For Appellants : Mr.K.Varadha Kamaraj

For Respondent 1 : No Appearance

For Respondent 2 : Mr.S.Arunkumar

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JUDGMENT

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C.M.A.No.2956 of 2019

This Civil Miscellaneous Appeal has been filed by the

appellant / claimant herein against the Judgment and decree passed

in M.C.O.P.No115 of 2009 dated 17.04.2013 on the file of the Motor

Accident Claims Tribunal, Chennai

(Subordinate Judge),

Tiruchengode for enhancement of compensation.

2. The claimant filed the claim petition under Section 163A of

the Motor Vehicles Act claiming compensation of Rs.7,00,000/- in

M.C.O.P.No.115 of 2009 from the respondents.

3. The learned Tribunal, after hearing both sides arguments

and upon considering the oral and documentary evidences put forth,

has dismissed the claim petition by holding that the second

respondent / Insurance Company has established that there was no

rash and negligent act on the part of the driver of the TATA Sumo

bearing registration No. TN 01 W 5188, the Insurance Company is

not liable to pay compensation of the petitioners and ultimately the

claim petition was dismissed.

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C.M.A.No.2956 of 2019

4. The learned counsel appearing for the appellants / claimants

would strenuously contend that the tribunal has dismissed the claim

petition by holding that there was no negligent act on the part of the

driver of TATA Sumo car. To claim under Section 163A of Motor

Vehicles Act, negligence need not be pleaded and proved, therefore,

as per Section 163A of Motor Vehicles Act as appended in schedule -

II the appellants are entitled for compensation.

5. Per contra, learned counsel for the second respondent /

Insurance Company Thiru.S.Arun Kumar would vehemently argue

that the claim petition has been filed under Section 163A and the

structured formula given under Tmt.Sarala varma case cannot be

followed and prayed for dismissal.

6. Succinctly stated the facts are: on 20.07.2007 at about 06.00

pm., while the deceased Devaraj was riding his motor cycle bearing

registration No.TN 28 T 8055 along the B.P.Agraharam to Barrage

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C.M.A.No.2956 of 2019

Road towards east direction near the barrage, the driver of TATA

Sumo bearing registration No.TN 01 W 5188. At that time the driver

of the TATA Sumo had stationed towards the same direction for

carrying out some work, suddenly and negligently opened the front

left side door of the vehicle without noticing the deceased vehicle.

The deceased fell down and sustained fatal injuries and he was taken

to the Government Hospital, Erode were he succumbed to the

injuries.

7. On behalf of the second respondent / Insurance Company

the said claim was resisted by filing counter to the effect that on the

above said date the deceased Devaraj drove the above said

Motorcycle in a rash and negligent manner and dashed on the front

left side door of Tata Sumo Car and thereby sustained injuries and

on the next date he died, therefore accident happened only due to

rash and negligent driving of the deceased. The Police closed the

case as charge abated, therefore there is no negligence on the part of

the driver of the TATA Sumo Car and hence the Insurance Company

is not liable to pay compensation and prayed for dismis