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2008 DIGILAW 1337 (MAD)

Ganesan v. P. P. Chinnappa & Others

2008-04-22

R.SUDHAKAR

body2008
Judgment :- The injured claimant is the appellant seeking compensation for the injury suffered by him in a motor accident happened on 7. 1994. 2. The Claim petition M.C.O.P.No.112 of 1995 on the file of Sub Court, Ranipet was dismissed on 211. 2001. 3. In the claim petition it is stated that on 7. 1994 at about 1.30 p.m., when the appellant/claimant, aged about 47 years, an agriculturist, was walking on the left side of the road near Rathinagiri bus stop on the Vellore Arcot Highways Road, the TVS Champ bearing Registration No. TCD 2167 belonging to the first respondent and driven by third respondent rashly and negligently came on the back side of the petitioner and dashed the appellant/claimant. Due to accident appellant/claimant sustained fracture in his right shoulder bone and injuries all over body injuries. Appellant/claimant was taken to Government Pentland Hospital, Vellore. Thereafter, he took treatment on 7. 1994, 17. 1994, 20.7.1994 and 27. 1994 from Bone Setting Hospital at Rachapalam SF Puttur Taluk, Andhra Pradesh State for his fracture in Ex.R-4 Certificate given by the Police station stating that the two wheeler could not be tracted, Ex.R-5 Receipt given by the first respondent to the insurance company on receiving a sum of Rs.4,250/- towards the stolen Vehicle. Ex.R-6 Claim form given by the first respondent to the second respondent. 4. On the basis of the oral and documentary evidence as stated above, the Tribunal came to conclusion that the accident was due to the rash and negligent driving of the third respondent. The first respondent proved by Exs.R-2 to R-4 that the Vehicle involved in the accident was stolen. Relying on the decision of this Court in New India Insurance co. Ltd., - Vs. – Selvarajamani, 1998 ACJ 547 (Madras), the Tribunal held that since the Vehicle was not under the control of the first respondent, on the date of accident, the first respondent, the owner or the second respondent, the insurer are not liable to pay any compensation to the claimant. The Tribunal, accordingly, dismissed the claim petition. Against that dismissal of the claim petition, this appeal by the claimant. 5. From the facts as stated above, it is clear that the theft had occurred in March, 1994 and the intimation that the Vehicle was not traceable was given on 6. 1994 under Ex. R-4. The accident in this case happened on 7. 1994. Against that dismissal of the claim petition, this appeal by the claimant. 5. From the facts as stated above, it is clear that the theft had occurred in March, 1994 and the intimation that the Vehicle was not traceable was given on 6. 1994 under Ex. R-4. The accident in this case happened on 7. 1994. Therefore, it is obvious that on the date of accident, the owner of the vehicle, the first respondent had no control over the Vehicle in question. As to the liability of the owner, insofar as the accident caused due to the Vehicle, which was stolen and is not under the control of the owner of the concerned, the decisions of this court in Mariammal and others – vs. – M. Ramasubramaniam and others reported in 1999 ACJ 249 and New India Assurance Co. Ltd., - vs. – Selvarajamani reported in 1998 ACJ 547 confirmed by the Division Bench of this Court in Selvarajamani and two others – vs. – New India Assurance Company Ltd., reported in 2004 (2) TN MAC 21 decides the issue. In Mariammal’s case para 31 reads as follows:- “31. On a consideration of the law laid down by the Apex Court as well as the various authorities relied upon by either side and following the decision of S.M. Abdul Wahab, J., in New India Assurance Co. Ltd., v. Selvarajamani, 1998 ACJ 547 (Madras), as it has not been established that the vehicle was driven by a person either in the employment of the respondent No.1 or the person who drove the vehicle was authorised to drive the vehicle during the material point of time, this court, while confirming the findings of the Tribunal below, exculpates the liability of the respondent No.1 owner of the Vehicle and the respondent No.2 insurer of the vehicle.” The Division Bench in the case of Selvarajamani and two others – vs. – New India Assurance Company Ltd., reported in 2004 (2) TN MAC 21 also affirmed the above view in paragraph 6 that the owner of the vehicle cannot held liable when the vehicle itself was stolen. Para 6 of the decision reads as follows:- “6. When a vehicle is stolen, it cannot always be said that the owner had been negligent. The ingenuity of the person who committed theft cannot always be foreseen. Para 6 of the decision reads as follows:- “6. When a vehicle is stolen, it cannot always be said that the owner had been negligent. The ingenuity of the person who committed theft cannot always be foreseen. If as a prudent owner, the owner of the vehicle had taken the normal precaution of locking the car while parking it in a public place, the owner cannot be held responsible for the theft of the vehicle. The person who steals the motor vehicle cannot, on the basis of any principle, be described as an agent of the owner, or employee of the owner, for the purpose of casting liability on the owner. The concepts of agency or employment or contract are wholly inapposite in a case of theft. Theft is taking away of the property without the consent expressed or implied of the owner, and with intent to appropriate the property for oneself. None of the established legal principles can be stretched so as to constitute a thief who stole the motor vehicle, a representative of the owner for the purpose of making the owner liable.” The facts of the present case squarely fits the reasoning given by the Division Bench as above. However, in view of the provisions of section 140 (2) of Motor Vehicles Act, the owner and the insurer of the vehicle are liable to settle the claim only in respect of the “no fault liability” in sum of Rs.12,000/-. 6. The next issue that would arise for consideration is that the claimant in this case is a third party. Admittedly, the driver, who caused the accident is third respondent and he appeared before the court below as well as before this court. Therefore, the Claims Tribunal ought not to have dismissed the claim petition only on the ground that the owner of the vehicle and the insurance company are not liable and therefore, the claimant is not entitled to any compensation. Due to the rash and negligent driving on the part of the third respondent, the claimant has suffered serious injuries and that is borne out by records. The Claims Tribunal ought to have adjudicated upon the claim petition as to the quantum of compensation i.e., payable to the claiman consequent to the accident caused by the rash and negligent driving of the part of the third respondent. The Claims Tribunal ought to have adjudicated upon the claim petition as to the quantum of compensation i.e., payable to the claiman consequent to the accident caused by the rash and negligent driving of the part of the third respondent. The Tribunal has failed to do so and dismissed the claim petition holding that the respondents 1 and 2 are not liable. This court clearly is of the opinion that the Tribunal erred in rejecting the claim petition totally. The liability of respondents 1 and 2 will be restricted in terms of the provision of Section 140 (2) of the Motor Vehicles Act. However, the claimant will be entitled to just and reasonable compensation to be determined as per the evidence on record and the pleadings. The order of the Tribunal having failed to examine this issue, dismissing the claim petition has to be set aside. 7. In the result, the order of the Tribunal is set aside and the matter is remitted to the Tribunal for quantification of compensation as per the oral and documentary evidence. The compensation that may be determined by the Tribunal will be payable by the third respondent over and above the sum of Rs.12,000/-payable by the respondents 1 and 2. The claimant will be entitled to the sum of Rs.12,000/-with interest from the respondents 1 and 2. The excess amount to be determined by the Tribunal will be payable by the third respondent. The interest is to be determined by the Tribunal in its entirety. The Civil Miscellaneous Appeal is disposed of accordingly. No costs.