CMA(MD).No.589 of 2019

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 13.03.2023

PRONOUNCED ON : 16.03.2023

CORAM

THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

C.M.A(MD)No.589 of 2019

M/s.Cholamandalam MS General

Insurance Company Ltd.,

Nos.3 & 4, Dindigul High Road

Kalavaasal

Madurai 625 010

... Appellant

vs.

1.Mohan

2.Mahalakshmi

...Respondents

PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of

Motor Vehicles Act, 1988, to set aside the judgement and decree passed

in M.C.O.P.No.432 of 2013 on the file of the Motor Accident Claims

Tribunal (Special Sub Court), Madurai, dated 28.09.2018.

For Appellant

: Mrs.K.R.Shivashankari

For R1

: Mr.M.Suresh

For R2

: Mr.AN.Ramanathan

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CMA(MD).No.589 of 2019

J U D G M E N T

The appeal has been filed by the Insurance Company challenging

the award of the Accident Claims Tribunal, Dindigul in MCOP.No.432

of 2013 primarily on the ground of liability.

2.The claimant is an injured person who had travelled in a TATA

ACE Vehicle by the side of the driver as a salesman of an oil store

carrying the goods. According to the claimant, the vehicle was driven in

a rash and negligent manner by the driver by name Manikumar and it got

capsized. The claimant got injured in his left shoulder, left wrist and

injuries in various parts of the body. The claimant had contended that he

was drawing a salary of Rs.12,500/- per month and he prayed for a

compensation of Rs.5,00,000/-.

3.The owner of the vehicle namely the first respondent had

remained exparte and the insurer had filed a counter contending that the

said Manikumar was not on wheel at the time of accident. One Sebastin

was the driver at the time of accident who did not possess valid driving

license. That apart, an F.I.R has been lodged after a delay of 22 days

from the date of accident. Therefore, the Insurance Company had

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CMA(MD).No.589 of 2019

contended that they are not liable to pay compensation as claimed by the

petitioner.

4.The Tribunal after considering the oral and documentary

evidence, arrived at a finding that the accident had taken place on

18.09.2012 and the F.I.R has been registered on 10.10.2012. Though it is

contended on the side of the Insurance Company that one Sebastin was

on the wheel when the accident had happened, the Police Authorities had

registered the F.I.R as against the Manikumar and he has also been

charge sheeted. Thereafter, the said Manikumar has paid the fine in the

Court. No proceedings have been initiated by the Insurance Company

alleging that there was impersonation. The Tribunal further found that

only the said Manikumar was the driver at the time of accident.

5.As far as the quantum of compensation is concerned, the

Tribunal found that the injured claimant had spent a sum of Rs.54,200/-

towards medical expenses as per Exhibit P4. The claimant had suffered

15% of permanent disability as per Exhibit P8 and calculating at the rate

of Rs.3000/- per percentage, the Tribunal arrived at Rs.45,000/- for the

partial permanent disability of the claimant. Though the claimant had

claimed Rs.12,500/- as his monthly income, the Tribunal has taken

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CMA(MD).No.589 of 2019

Rs.6000/- as the monthly income and arrived at the compensation based

upon the said monthly income and totalling a sum of Rs.1,68,000/-.

Challenging the same, the present appeal has been filed by the Insurance

Company.

6.The primary contention of the learned counsel for the appellant is

that the vehicle was not driven by Manikumar at the time of accident.

The vehicle was driven by one Sebastin who did not possess valid

driving license. The owner of vehicle namely the first respondent in the

claim petition had raised a claim for own damage before the Insurance

Company. In the said claim petition, the