IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 15.03.2021

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI

C.M.A.No.4511 of 2019

and CMP.No.25498 of 2019

National Insurance Company Limited,

Its Manager,

First Floor, Karthikeya Complex,

403-B-10, Mettur Main road,

Bhavani, Erode District.

..2^nd Respondent Appellant

Vs.

1.Ashtalakshmi

...Petitioner/1^st Respondent

2.N.Senthil Murugan

..1^st Respondent/ 2^nd

Respondent

Prayer: This Civil Miscellaneous Appeal is filed under Section

173 of the Motor Vehicles Act, 1988, against the order and award

dated 13.02.2019 made in M.C.O.P.No.121 of 2016, on the file of

the Motor Accidents Claims Tribunal, IV Additional District

Judge, Erode District, Bhavani.

For Appellant :

Mr.S.Vadivel

For Respondent :

Ms.T.Gayathri (For R1)

for M/s.C.Kulanthaivel

No Appearance (For R2)

J U D G M E N T

(The matter is heard through “Video Conferencing/Hybrid mode”)

This Civil Miscellaneous Appeal has been filed by the

appellant-Insurance Company against the judgment and decree

dated 13.02.2019 made in M.C.O.P.No.121 of 2016 on the file of

the IV Additional District Court, (Motor Accidents Claims

Tribunal), Erode District, Bhavani.

https://hcservices.ecourts.gov.in/hcservices/

2.The appellant is the 2^nd respondent in M.C.O.P.No.121 of

2016 on the file of the IV Additional District Court, (Motor

Accidents Claims Tribunal), Erode District, Bhavani. The 1^st

respondent/claimant filed the said claim petition, claiming a

sum of Rs.5,00,000/- as compensation for the injuries sustained

by her in the accident that took place on 26.11.2015.

3.According to the 1^st respondent, on the date of accident,

she was traveling in an Auto bearing Registration No.TN-36-J-

3380 belonging to the 2^nd respondent and driven by the 2^nd

respondent, towards Kavundapadi to Bhavani Road, Sulaimedu to

deliver the goods to Maligai Shop. While nearing Annamar Kovil,

the 2^nd

respondent without following traffic rules and

regulations, on seeing a dog crossing the road, suddenly applied

brake. Due to the said impact, the Auto capsized and thus, the

accident occurred. In the accident, the 1^st respondent suffered

grievous and multiple injuries. The accident occurred only due

to rash and negligent driving by the 2^nd respondent, driver-cum-

owner of the Auto. Hence, the 1^st respondent filed the claim

petition claiming compensation against the 2^nd respondent as

owner-cum-driver and appellant as insurer of the offending

vehicle respectively.

4.The 2^nd respondent, owner-cum-driver of the Auto, remained

exparte before the Tribunal.

5.The appellant-Insurance Company, filed counter statement

and denied all the averments made by the 1^st respondent in the

claim petition. According to the appellant, the seating capacity

of the vehicle involved in accident is one and admittedly, the

1^st respondent traveled in the said vehicle along with the 2^nd

respondent/driver of the Auto at the time of accident. The 1^st

respondent traveled as gratuitous passenger/Non Fair Paying

Passenger and hence, she is not entitled to claim any

compensation on the policy of insurance issued to the said

vehicle. Having filed the claim petition under Section 163 – A

of the Motor Vehicles Act, the 1^st respondent is not entitled to

claim her monthly income as Rs.10,000/- per month, which amounts

to Rs.1,20,000/- per annum. FIR was filed after two days of the

accident and no records were furnished for the treatment taken

at Saravana Hospital, Bhavani, which gives room for suspicion

about genuineness of the accident. The 1^st respondent has to

prove the manner of accident, involvement of the said Auto in

the accident, her age, avocation and income, treatment taken and

injuries sustained, to claim compensation. In any event, the

total compensation claimed by the 1^st respondent is excessive and

prayed for dismissal of the claim petition.

6.Before the Tribun