C.M.A(MD)No.890 of 2019

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON: 28.08.2023

PRONOUNCED ON:11.10.2023

CORAM

THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

C.M.A(MD)No.890 of 2019

The Branch Manager,

New India Assurance Company Limited,

Coimbatore,

11-19 & 20, II Floor Peoples Park BLDG,

Govt. Arts College Road,

Coimbatore.

: Appellant/1^st Respondent

Vs.

1.Padma

2.Vishagan

3.Minor Varna

(Minor R3 is represented by her

mother and natural guardian,

the 1^st respondnet, Padma)

: Respondents 1 to 3 /

Petitioners

4.S.Prabu

: 4^th Respondent/

2^nd Respondent

PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the

Motor Vehicles Act,1988 against the Judgment and Decree made in

M.C.O.P.No.106 of 2016, on the file of the Motor Accident Claims

Tribunal/Additional District and Sessions Court, Theni @ Periyakulam,

dated 29.08.2018.

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C.M.A(MD)No.890 of 2019

For Appellant : Mr.J.S.Murali

For Respondents :Mr.C.Vakeeswaran

for R.1 to R.3

JUDGMENT

This Civil Miscellaneous Appeal is directed against the award

passed in M.C.O.P.No.106 of 2016, dated 29.08.2018, on the file of the

Motor Accident Claims Tribunal / Additional District Court, Theni at

Periyakulam.

2. The appellant/Insurer was made liable to pay compensation of

Rs.8,05,000/- with interest at 7.5% p.a., to the respondents 1 to 3 /

claimants for the death of Marimuthu consequent to an accident occurred

on 10.04.2016, challenging the liability mulcted on it and also the

quantum of compensation awarded at by the Tribunal.

3. The case of the claimants is that on 10.04.2016, the deceased

Marimuthu was proceeding in a TATA Indiga car bearing Registration

No.TN-42-A-3150 for the purpose of selling that car, in Kodaikanal to

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C.M.A(MD)No.890 of 2019

Palani road and at the place near Karadi Rail Dilli Panikarai, due to the

mechanical defect, the vehicle lost its control, fell down in the hills slope

and the said Marimuthu had died on the spot and that on the basis of the

complaint lodged by the first claimant, a case was registered in Cr.No.76

of 2016, on the file of the Thandikudi Police Station for the offences

under Sections 279 and 304A I.P.C. It is the further case of the claimants

that the said car was owned by the first respondnet and the same was

insured with the second respondent and as such, both are liable to pay the

compensation, that the deceased was a broker in buying and selling of car

and lorry and was earning more than Rs.30,000/- p.m. and that he was

aged about 52 years at the time of accident.

4. The defence of the appellant-Insurer is that the accident was

occurred only due to the rash and negligent driving of the deceased

Marimuthu and because of uncontrollable speed, the car slipped on the

road side and toppled on the hilly slope and the deceased being the

tortfeasor, the legal heirs are not entitled to claim compensation. It is the

further case of the Insurer that the claimants have taken a stand in the

claim petition that the accident was occurred only due to the mechanical

defect of the vehicle and if that be so, the Insurer cannot be made liable.

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C.M.A(MD)No.890 of 2019

5. During trial, the claimants have examined the first claimant as

P.W.1 and two other witnesses as P.W.2 and P.W.3 respectively and

exhibited six documents as Exs.P.1 to P.6. The second respondent –

owner of the vehicle had remained exparte. The first respondent-Insurer

has examined one witness as R.W.1 and exhibited the insurance policy

under Ex.R.1 and one witness document – Motor Accident Vehicle's

report as Ex.X.1. The learned trial Jude, upon considering the evidence

both oral and documentary and on hearing the arguments of both sides,

has passed the impugned order dated 29.08.2018, by holding that the

accident was occurred only due to the mechanical defect of the vehicle,

mulcte