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2015 DIGILAW 1052 (MAD)

Jeyakumar v. P. Subramanian

2015-02-23

D.HARIPARANTHAMAN

body2015
Judgment 1. The appellant is the owner of the share auto-rickshaw which involved in the accident. The 1st respondent is the claimant who injured in the accident. The 2nd respondent is the insurance company with which the share auto-rickshaw was insured. The other details are not necessary for disposal of the case. 2. The claimant filed MCOP.No.936 of 2002 before the Motor Accidents Claims Tribunal, II Additional Subordinate Judge, Tirunelveli, claiming compensation of Rs.5,00,000/- for 60% disability sustained in the accident. He was awarded Rs.3,92,800/- as compensation. While ordering compensation, the Tribunal directed the insurance company to recover the same from the appellant/owner of the vehicle. Hence, the owner of the vehicle has filed this appeal. 3. Learned counsel for the appellant has submitted that nowhere in the judgment, the Tribunal has recorded a finding that there were more passengers travelled in the Auto at the time of accident than the number of passengers that were allowed by the policy. 4. As per the insurance policy which has been marked as Ex.R1, the seating capacity of the Auto is five. However, according to the claimant, five passengers including him were travelling in the Auto at the time of accident. On the other hand, it is the case of the insurance company that more than 10 persons travelled in the Auto at the time of accident and the same is based on Ex.P1-FIR. The person who gave the FIR was not examined. On the other hand, the claimant got examined himself as a witness before the Tribunal. He categorically deposed that only five persons were travelling in the Auto and no suggestion was put to him that he was making a false claim. 5. A Senior Assistant of the insurance company was examined on behalf of the insurance company before the Tribunal. He stated in the chief examination that more than five persons travelled in the Auto contrary to the policy conditions. But a suggestion was put to him that only four persons were travelling in the Auto at the time of accident along with the claimant. Of course, the witness denied the said suggestion, but admitted that he did not see the accident. The 2nd respondent insurance company did not choose to examine the person who gave the FIR. There is no other evidence to establish that more persons travelled in the Auto. Of course, the witness denied the said suggestion, but admitted that he did not see the accident. The 2nd respondent insurance company did not choose to examine the person who gave the FIR. There is no other evidence to establish that more persons travelled in the Auto. The learned counsel for the appellant is not able to state that more than five claims were filed out of the accident. 6. In these circumstances, based on the FIR alone, the Tribunal could not have ordered recovery from the owner of the Auto, particularly when the claimant has categorically stated that there were only five persons including him travelling in the auto-rickshaw at the time of accident. When the claimant was an eye-witness to the accident, his evidence should be given due weightage. On the contrary, the only witness examined on the side of the insurance company was not an eye-witness. The insurance company did not choose to investigate the matter to find out as to the truthfulness about the number of passengers travelled at the time of accident. 7. In these circumstances, I am of the view the Tribunal is not correct in directing recovery of the amount from the owner of the Auto. Hence, the portion of the judgment and decree passed by the Tribunal as regards recovering the compensation amount from the appellant is set aside and the Civil Miscellaneous Appeal is allowed. No costs. C.M.P. (MD) No. 2884 of 2005 is closed.