Yasodha vs M. Selvakumar

R. Subbiah, J.—The present appeal has been filed as against the order of dismissal dated 29.11.2010 made in M.C.O.P. No. 96 of 2008 passed by the Motor Accidents Claims Tribunal (Sub-Judge), Bhavani, dismissing the claim petition filed by the claimants/appellants herein.

The appellants herein are the claimants before the Tribunal. The 1st appellant is the wife, the appellants 2 & 3 are the minor son and daughter, respectively, and the appellants 4 & 5 are the parents of the deceased Manickasundaram.

It is the case of the appellants/claimants before the Tribunal that on 16.09.2007 when the said Manickasundaram was traveling as a pillion rider in the two-wheeler bearing Registration No. TN-33-AD-7785, owned by the 1st respondent herein and driven by one Moganathan, due to the rash and negligent driving, the rider Mohanathan lost his control and dashed the two-wheeler against a wall of a tea-shop owned by one Nachi @ Karuppanan-P.W. 2 and thus, caused the accident. In the said accident, the rider of the two-wheeler viz., Moganathan and the pillion rider Manickasundaram died on the spot. Hence, the legal heirs of the Manickasundaram filed claim petition in M.C.O.P. No. 96 of 2008 before the Motor Accidents Claims Tribunal (Sub-Judge), Bhavani, claiming a sum of Rs. 13 lakhs as compensation, as against the owner of the two-wheeler and its insurer, appellant herein/Insurance Company.

The case of the claimants was resisted by the Insurance Company, by taking a defence that at the time of accident, three persons had traveled in the two-wheeler and all the three persons were under the influence of alcohol. In the said accident, rider Moganathan and a pillion rider Manickasundaram died on the spot and another pillion rider Selvakumar, who is the owner of the two-wheeler, sustained grievous injuries. Further, according to the Insurance Company, the rider of the two-wheeler did not possess a valid and effective driving licence on the date of accident and as such, there is a violation to the conditions of the Insurance Policy. Further more, it is the specific defence of the Insurance Company that though the deceased Manickasundaram had traveled in the vehicle as a pillion rider, as no additional premium was paid to cover the risk of the pillion rider, the Insurance Company is not liable to pay the compensation amount. Thus, the Insurance Company sought for dismissal of the claim petition.

In order to prove their claim before the Tribunal, on the side of the claimants, the 1st claimant/1st appellant herein/wife of the deceased examined herself as P.W. 1, besides examining one Nachi @ Karupan, who was an eye-witness to the occurrence, as P.W. 2 and marked nine documents as Ex. P.1 to Ex. P.9. On the side of the Insurance Company, the Assistant Manager of the Insurance Company was examined as R.W. 1 and two documents were marked as Ex. R. 1 & Ex. R.2.

The Tribunal, after analysing the entire evidence adduced on either side, has come to the conclusion that at the time of accident, three persons had traveled in the two-wheeler and they were under the influence of alcohol at the time of accident and the vehicle was driven in a rash and negligent manner by its rider and that the accident had occurred only due to the negligent act of the rider of the two-wheeler. Thus, the Tribunal has negatived the case projected by the claimants and dismissed the claim petition holding that the claimants are not entitled to any compensation amount from the Insurance Company. Aggrieved over the same, the present appeal has been filed by the claimants.

Heard the submissions made on either side and perused the materials available on record.

Before dealing with the findings rendered by the Tribunal with regard to the manner of accident, I am of the opinion that at the out set, it would be appropriate to deal with the liability of the Insurance Company to pay the compensation amount, since the Insurance Company has taken a specific defence that as no additional premium was paid to cover the risk of the pillion rider, they are not liable to pay the compensation amount.

With regard to the liability of the Insurance Company to pay the compensation amount, the Tribunal by relying upon the Judgment The National Insurance Company Limited Vs. Pattabhi Ramaiah and Srinivasa Rao, , has observed that even if no premium is paid to cover the risk of the pillion rider, the Insurance Company is liable to pay the compensation amount. Though the Tribunal has observed that as per the said Judgment referred to above, the Insurance Company is liable to pay the compensation amount, finally the Tribunal has dismissed the claim petition only on the reasoning that the accident had occurred only due to traveling of three persons in the two-wheeler. In fact, the Division Bench of this Court in the Judgment delivered in C.M.A. No. 312 of 2009, dated 04.03.2009, in the case of Royal Sundaram Alliance Co. Ltd., Vs. Meenakshi and others, has held that the liability of insurer to a pillion rider would depend upon the cover granted by the insurer bearing Act Policy or Package Policy and in respect of an Act Policy, such persons are not required to be covered and it is only under a Package Policy such persons are covered by the contract of insurance.

Further, from the evidence of R.W. 1, Assistant Manager of Insurance Company, I find that R.W. 1 has admitted in his evidence that the policy is only a package policy. Therefore, I am of the considered opinion, the claim petition cannot be dismissed on the ground that no premium was paid separately for the pillion rider.

With regard to the manner of accident, the learned counsel for the appellants/claimants submitted that while the deceased Manickasundaram was traveling as a pillion rider in the two-wheeler bearing Registration No. TN-33-AD-7785, the said two-wheeler was driven by one Mohanathan. Since the said two-wheeler was driven by the said Moganathan in a rash and negligent manner, he lost his control and dashed the two-wheeler against the wall of a tea-shop and thus, caused the accident. In the said accident, the rider Moganathan and the pillion rider Manickasundaram died on the spot. Hence, the legal heirs of the pillion rider Manickasundaram have filed the claim petition before the Tribunal seeking compensation for the death of Manickasundaram.

Per contra, the learned counsel for the Insurance Company submitted that at the time of accident, totally three persons had traveled in the two-wheeler and the two-wheeler was driven by one Moganathan and the deceased Manickasundaram and the owner of the vehicle Selvakumar, who is the 1st respondent herein, traveled as pillion riders and that all the three persons were under the influence of alcohol. Since the said two-wheeler was driven in a rash and negligent manner by the rider Moganathan, he lost his control and dashed the two-wheeler against a tea shop of P.W. 2 viz., Nachi @ Kuruppanan. But, the complaint was given to the Police by one Arumugam, brother-in-law of the deceased Manickasundaram, who was working as an Head-Constable in Ante-corruption and Vigilance Department at Erode and in the complaint, the complainant Arumugam had stated that at the time of accident, totally three persons had traveled in the two-wheeler and since the rider of the vehicle hit against the wall of the tea-shop of P.W. 2, the rider and one of the pillion riders died on the spot and another pillion rider namely Selvakumar, owner of the vehicle, was taken to the hospital in an ambulance. Thus, the learned counsel for the Insurance Company submitted that by placing reliance on the FIR, the Tribunal has come to the conclusion that at the time of accident totally three persons had traveled in the two-wheeler and the accident had occurred only because of the reason that in the two-wheeler three persons had traveled and they were under the influence of alcohol. The learned counsel for the Insurance Company submitted that the claim petition has been dismissed by the Tribunal only on a sound reasoning and therefore, there is no need to interfere with the judgment and decree passed by the Tribunal.

Per contra, it is the reply of the learned counsel for the claimants/appellants herein that before the Tribunal on the side of the claimants, owner of the tea-shop, who was an eye-witness to the occurrence, was examined as P.W. 2 and that he had categorically stated in his evidence that at the time of accident only two persons had traveled in the two-wheeler. Even in the cross-examination of P.W. 2, he had made an assertion that at the time of accident only two persons had traveled in the two-wheeler. No contra evidence was adduced on the side of the Insurance Company. Under such circumstances, by placing reliance on the evidence of P.W. 2, the Tribunal ought to have come to the conclusion that the claimants are entitled to the compensation amount.

Keeping the submissions made on either side, I have carefully gone through the entire materials available on record. On a perusal of the FIR, I find that the FIR was given be one Arumugam, brother-in-law of the deceased Manickasundaram and he was not an eye-witness to the occurrence. In the FIR, he had stated that he had received phone message about the accident on 16.09.2007 at about 7.30 pm and when he went to the spot, he found the dead body of his brother-in-law Manickasundaram lying on the road. On enquiry with the tea-shop owner viz., P.W. 2-Nachi @ Karuppanan, he came to know that other two persons came in a two-wheeler viz., rider of the two-wheeler Moganathan and owner of the two-wheeler Selvakumar sustained injuries and they were taken to the hospital in an ambulance.

However, P.W. 2-Nachi @ Karuppannan, who is said to have given information to the complainant-Arumugam, in his evidence stated that at the time of accident only two persons had traveled in the two-wheeler. But, the Tribunal disbelieved his evidence stating that only in order to help the claimants, P.W. 2 has made a false statement. Further, the Tribunal has found that the person, who has given complaint-FIR has not come forward to adduce evidence before the Tribunal. Thus, the Tribunal has dismissed the claimant petition.

By relying upon the decision of the Orissa High Court reported in Mataji Bewa and Others Vs. Hemanta Kumar Jena and Another, , it is submitted by the learned counsel for the appellants/claimants that the contents of the FIR cannot be treated as an evidence in a claim proceedings and the Tribunal must rely upon the evidence led before it. In the instant case, P.W. 2, who was said to have given information to the complainant-Arumugam, has clearly stated in his evidence that only two persons had traveled in the two-wheeler at the time of accident. Therefore, by relying upon the evidence of P.W. 2, the Tribunal ought to have directed the Insurance Company to pay the compensation amount.

But, in my considered opinion, in the absence of any evidence by the complainant-Arumugam, the submission of the learned counsel for the claimants that by placing relying upon the evidence of P.W. 2, the Tribunal ought to have directed the Insurance Company to pay the compensation amount, cannot be accepted. However, I am of the opinion that in the interest of justice, it would be appropriate to remand the matter back to the Tribunal with a direction to issue notice to the complainant-Arumugam to appear before the Tribunal and to adduce evidence, and to decide the case based on his evidence.

Hence, the impugned judgment and decree are set aside and the matter is remanded back to the Tribunal with a direction to summon the complainant-Arumugam to adduce evidence, and to decide the case afresh after giving opportunity to the respondent to cross-examine the said witness as early as possible.

With the above terms, the Civil Miscellaneous Appeal is disposed of. No costs.