Dismissed

Suresh v. State Rep by

Madras HC7 Jan 2019CRL OP/157/2019

Case brief

AI extract

What is this about?

The High Court reviewed two applications challenging a common order in motor accident claim appeals. It rejected the argument for review based on established grounds, denied the concept of deemed insurance due to lack of renewal, and dismissed the review petitions, noting the delay and victim's suffering.

What did the court decide?

Review petitions Rev.A.Nos.157 & 158 of 2019 were rejected and dismissed with no costs awarded.

Suresh Vs State Rep by — Motor Accident Claims | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED :19.08.2021

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CORAM :

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THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN

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REV.A.NOS.157 & 158 OF 2019

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The Executive Officer,
Nagar Palika Parisad,
Etah, Etah District,
Uttar Pradesh.

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...Petitioner in both Applications/
5th Respondent

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Vs

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1.P.Sivagami @ Shantha
W/o.Late Pandidurai

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2.P.Deepak Muthukumar
S/o.Late Pandidurai

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3.Minor P.Divya Shree

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Minor rep. by her mother and natural guardian
P.Sivakami @ Shantha

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4.M.Chinathai
W/o.Late Muthumanickam

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5.United India Insurance Co. Ltd.,
Motor Third Party Claims Office,
No.38, Anna Salai,
Chennai 600 002

¶15

... Respondents in both Applications/
Respondents 1 to 4/Appellants

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COMMON PRAYER : Review Applications filed to review the common
order dated 11.04.2018 passed by this Court in C.M.A.No.4167 of
2008 and C.M.A.No.1805 of 2017.

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

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C.M.A. Nos. 4167 of 2008 and 1805 of 2017:-

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Civil Miscellaneous Appeals filed against the Judgment
and Decree in M.C.O.P.No.2429 of 2004, dated 28.08.2007 on the
file of the Motor Accidents Claims Tribunal, Chief Court, Court
of Small Causes, Chennai.

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For Petitioner : Mr.S.Arun Kumar
(in both applications)
For Respondents : Mr.G.Balaji Prasad (for R1 to R4)
(in both applications)

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Mr.E.Rajadurai (for R5)
for Mr.N.Vijayaraghvan
(in both applications)

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COMMON ORDER

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(Order of the Court was made by N.KIRUBAKARAN, J)

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These petitions have been filed to review the judgment
passed by this Court in C.M.A.No.4167 of 2008 preferred by the
Insurance Company and C.M.A.No.1805 of 2017 preferred by the
Review Petitioner/owner.

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2.On 28.01.2004, one Mr.M.Pandithurai, aged about 48
years who was employed as Production Officer in Hindustan Lever
Limited, Tea Factory, Etah, Uttar Pradesh, earning about
Rs.27,500/- per month was riding his motorcycle from Hindustan
Lever Limited, Tea Factory towards his residence at Etah Town,
Uttar Pradesh. When he approached the bridge on Kasganj Road, a
tractor trailer, belonging to the Executive Officer, Nagar
Palika Parisad, (owner), came in a rash and negligent manner and
hit against the victim's motorcycle perpendicularly, resulting
in falling of the victim on the metal wire that was used to
attach the trailer, thereby slitting his throat, consequent to
which, he died. Therefore, the claim petition was filed.

¶26

3.On contest, the Tribunal held that the driver of the
review petitioner was rash and negligent and caused the accident
and therefore, awarded compensation of Rs.28,27,415/- against
the Review Petitioner as well as Insurance Company. Aggrieved
over the award, both the Review Petitioner as well as the
Insurance Company preferred appeals before this Court. This
Court after hearing the parties, allowed C.M.A.No.4167 of 2008
as there was no insurance coverage on the date of the accident
viz., 28.01.2004 and dismissed C.M.A.No.1805 of 2017, enhancing
the compensation from Rs.28,27,415/- to Rs.34,00,000/- by way of

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

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common judgment dated 11.04.2018. The said common judgment was
challenged before the Hon'ble Supreme Court in S.L.P.
(C).Nos.18591 to 18592 of 2018 and the same were dismissed by
the Hon'ble Supreme Court on 01.08.2018. Thereafter only, the
present Review Applications have been filed to review the common
judgment passed by this Court on 11.04.2018.

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4.Mr.S.Arun Kumar, learned counsel appearing on behalf of
the Review Petitioner would submit that this Court should have
fastened liability on the Insurance company as the 5th
respondent/Insurance Company failed to renew the insurance
policy of the vehicle as there was an undertaking at the time of
taking insurance policy to renew it periodically by the
Insurance Company. He would further submit that the concept of
'deemed insurance coverage' has to be applied to all Government
vehicles in the country. Since the vehicle of the Review
Petitioner belongs to local body, the same concept of 'deemed
insurance coverage' has to be applied to the Review Petitioner's
vehicle. Further, it is contended that the criminal court which
dealt with the accident case acquitted the driver of the Review
Petitioner and therefore, this Court should have absolved the
present Petitioner from payment of compensation. The learned
counsel further relied upon the judgment of the High Court of
Himachal Pradesh in the case of National Insurance Company
Limited Vs. Kamal Kishore & others.

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5.Heard the parties and perused the records.

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6.A perusal of the records would show that all the points
now argued before this Court have already been dealt with by
this Court elaborately in the common judgment dated 11.04.2018.
There should be a ground made out to invoke Order 47 Rule 1 of
CPC r/w Section 114 of CPC to review the order. Repeating the
very same arguments which have been rejected by this Court by
common judgment and confirmed by the Hon'ble Supreme Court
cannot be a basis for filing the Review Applications.

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7.The applicability of criminal Court judgment/Ex.R2,
acquitting the tractor trailer in Cr.C.No.562/04 dated
17.07.2006 was elaborately argued and this Court rightly
rejected the said argument holding that the claim case is
decided on the touchstone of preponderance of probability,
whereas standard of proof beyond reasonable doubt could be
applied in criminal cases. The relevant paragraph Nos.15 & 16
are usefully extracted as follows:

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“15.Therefore, Ex.R2, Criminal Court's judgment
acquitting the tractor trailer in criminal case No.562
of 2004, dated 17.07.2006 will not have any bearing on
Tribunal's proceedings. Further, a close perusal of
the criminal Court's judgment would reveal that it is

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

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not an honourable acquittal and only based on benefit
of doubt, the tractor trailer driver was acquitted.
The relevant paragraphs of the judgment is extracted
as follows:

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“After thorough analysis of all evidences present
in the document, I came to this conclusion that
the charge made by the plaintiff against the
accused Chottein under Section 279, 304A, 427
IPC, is not successful doubtlessly. Hence with
the benefit of doubt he accuse Chottein is
eligible to be freed”

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The Honourable Supreme Court in Bimla Devi and others
V. Himachal Road Transport Corporation and others
reported in 2009 (1) TNMAC 700 (SC) reiterated the
claim merely as to establish their case on the
touchstone of preponderance of probability and the
standard of proof beyond reasonable doubt could not
have been applied. Paragraph 15 of the said judgment
is extracted as follows:

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“15.In a situation of this nature, the Tribunal
has rightly taken a holistic view of the matter.
It was necessary to be borne in mind that strict
proof of an accident caused by a particular bus
in a particular manner may not be possible to be
done by the claimants. The claimants were merely
to establish their case on the touchstone of
preponderance of probability. The standard of
proof beyond reasonable doubt could not have been
applied. For said purpose, the High Court should
have taken into consideration the respective
stories set forth by both the parties”

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16.Therefore, the claimants proved the following:
1.The tractor trailer belonging to the appellant in
CMA.No.1805/2017 viz., owner was involved in the
accident.

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2.The tractor trailer was driven rashly and
negligently by its driver.

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3.Because of rash and negligent driving, the victim
was dashed down and died in the accident.”

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8.With regard to the absence of insurance coverage on the
date of accident viz., 28.01.2004, it was already raised by the
Review Petitioner before this Court and this Court dealt with
the same in paragraphs 30, 31 & 32 of the common judgment
holding that there was no valid policy and inspite of direction
given by this Court, the Review Petitioner failed to produce the
valid insurance policy, which was in force as on the date of the

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

¶44

accident as claimed by the Review Petitioner. The relevant
paragraph Nos.31, 31 & 32 are usefully extracted as follows:

¶45

“30.Therefore this Court draws an adverse inference
against the owner of the vehicle. Moreover, the
insurance company adduced evidence and categorically
stated that on the date of accident, there was no
insurance policy and the insurance policy was taken
subsequently for the period from 26.04.2004 to
25.04.2005. Ex.R3, insurance policy marked is dated
28.04.2004, which is subsequent to the date of the
accident.

¶46

31.Further, the Division Bench of this Court,
while passing the interim order in this case in
M.P.No.1 of 2008 on 28.04.2009, directed the owner and
the 5th respondent in CMA.No.4167 of 2008 and the
appellant in CMA.No.1805 of 2017 to produce the
insurance policy for the vehicle covering the period
26.02.2003 to 25.02.2004. Paragraph 3 of the said
order is extracted as follows:

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“Therefore in this stay petition that is
filed by the Insurance Company, we restrict
the stay in so far as the appellant is
concerned and we give a direction to the
fifth respondent to produce the Insurance
Policy for the insured vehicle covering the
period 26.02.2003 to 25.02.2004 on or
before 12th June, 2009, failing which they
shall deposit a sum of Rs.14,00,000/-
(Rupees fourteen lakhs) to the credit of
M.C.O.P.No.2429 of 2004 on the file of the
Motor Accidents Claims Tribunal, Chief
Court, Small Causes, Chennai. If the fifth
respondent produces the policy which covers
the accident, then we will modify the grant
of stay to the appellant appropriately.”

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32.Even after nine years of passing of the
order, so far, the insurance policy for the period
from 26.02.2003 to 25.04.2004 has not been filed by
the owner of the tractor trailer. The non compliance
of the order of this Court would also enable this
Court to come to the conclusion that there was no
valid insurance policy, available for the tractor
trailer as on date of the accident ie., 28.01.2004.
Therefore, the liability to pay the compensation is
only on the owner of the vehicle. The liability
fastened on the insurance company is set aside.”

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

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9.The concept of 'deemed insurance coverage' is not
available, especially, when there is no insurance coverage as on
the date of the accident viz., 28.01.2004. Therefore, the said
contention is liable to be rejected. There is no concept of
automatic renewal in the absence of insurance premium made by
the insured. No insurance company would come forward to renew
the insurance policy in the absence of requisite payment of
premium. Therefore, the contention raised by the Review
Petitioner is absolutely frivolous and is rejected.

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10.The enhancement of the award amount is unnecessary and
uncalled for, the Revision Petitioner contended. When the trial
Court did not apply the right multiplier '13' and applied a
wrong multiplier '11' and also erroneously deducted 1/3rd towards
personal expenses, especially, when the number of family members
are four, this Court applying the right multiplier '13' and
deducting 1/4th towards personal expenses instead of 1/3rd as done
by the Tribunal awarded just compensation and it is based on the
judgment of the Honourable Supreme Court in Sarla Verma & Others
.Vs. Delhi Transport Corporation & another, reported in (2009) 2
TNMAC 1 (SC). Therefore, the said contention is also liable to
be rejected.

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11.There is no valid ground raised to review the common
judgment, especially, when the Hon'ble Supreme Court already
confirmed the common judgment of this Court. Therefore, the
Review Petitions are liable to be rejected. Accordingly,
rejected.

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12.Though the accident occurred as early as 2004, the
matter is being prolonged at the instance of the Review
Petitioner without taking note of the pathetic position and the
fate of the family members of the victim, who died in the
accident. This kind of attitude exhibited by the local body,
which comes under the definition of State under Article 12 of
the Constitution of India is deprecated.

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13.With the above observations, these Review Petitions
are dismissed. No costs.

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Sd/-

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Assistant Registrar(CS-IX)

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// True Copy //

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Sub Assistant Registrar

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sai

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

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To

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The Chief Judge,
Motor Accident Claims Tribunal,
Court of Small Causes,
Chennai – 104.

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Rev.A.Nos.157 & 158 of 2019

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PA(CO)
RLP(22/09/2021)

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

Suresh v. State Rep by

Case brief

What is this about?

What did the court decide?

Suresh v. State Rep by

Case brief

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