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2015 DIGILAW 923 (MAD)

Oriental Insurance Company Ltd. v. V. Mariyammal

2015-02-16

D.HARIPARANTHAMAN

body2015
Judgment :- 1. One Balamurugan rode a two-wheeler Suzuki-Max 100, bearing Registration No.TN-38-H-9691 from Tharapuram to Tiruppur. While he was proceeding near Kumaran Poultry, at about 9.30 p.m. on 24.02.2005, a person suddenly crossed the road and the same resulted in the accident and the said Balamurugan fell down and died in the accident. The first respondent is the wife and the second and third respondents are the minor children, who filed a petition in MCOP No.218 of 2005 claiming compensation for the death of Balamurugan. The application was filed under Section 163-A of the Motor Vehicles Act. 2. The Tribunal passed the judgment and decree dated 11.04.2011 in MCOP No.218 of 2005 awarding a sum of Rs.3,85,000/- as compensation. 3. The appellant – Insurance Company took a plea that the accident was only due to the negligence of the deceased Balamurugan and hence, the Insurance Company is not liable to pay any compensation to the claimants. 4. The learned counsel for the appellant – Insurance Company has vehemently contended that if the accident was due to the negligence of the person who rode the two-wheeler, the Insurance Company is not liable to pay any compensation to the claimants, even under Section 163-A of the Motor Vehicles Act. He has assailed paragraph-9 of the award of the Tribunal. Paragraph-9 of the award of the Tribunal is extracted hereunder: (“Tamil”) 5. On the other hand, the learned counsel for the claimants has submitted that absolutely there is no evidence to show that it was due to the negligence on the part of the deceased. 6. Heard the submissions made on either side. 7. Since the application is filed under Section 163-A of the Motor Vehicles Act, the burden is shifted to the Insurance Company to establish that the death was solely due to the negligence of the person who rode the two-wheeler. While the wife of the deceased deposed that the accident resulting in the death was due to the sudden crossing of a person, the only person examined on the side of the Insurance Company is a person employed in the Insurance Company. There was no investigation done on the accident. He simply stated that the accident could have been due to the negligence of the rider of the two-wheeler. 8. I have carefully gone through the evidence let in on the side of the Insurance Company. There was no investigation done on the accident. He simply stated that the accident could have been due to the negligence of the rider of the two-wheeler. 8. I have carefully gone through the evidence let in on the side of the Insurance Company. There is nothing in the evidence to prove that the accident was solely due to the negligence on the part of the rider of the two-wheeler. Since the Insurance Company did not discharge their burden, I am not inclined to interfere with the award of the Tribunal. The only question raised by the appellant is that the deceased was negligent and hence the Insurance Company is not liable to pay the compensation. As stated above, I have come to the conclusion that there is no evidence let in by the appellant to prove that the deceased was responsible for the accident. 9. The Civil Miscellaneous Appeal fails and the same is disposed of accordingly. Consequently, the connected miscellaneous petition is closed. No costs. 10. As per the order of this Court dated 12.02.2013, the Insurance Company has deposited 50% of the award amount, and subsequently the first claimant, the wife of the deceased was permitted to withdraw her share out of the deposited amount. Therefore, the compensation as ordered by the Tribunal with interest is directed to be deposited by the Insurance Company, less the amount already deposited, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit being made, the first and fifth respondents herein, who are the wife and mother of the deceased respectively, are permitted to withdraw their respective share. The shares of the minors shall be deposited in any one of the Nationalised Banks in a Fixed Deposit, initially for a period of three years and renewed periodically till the minors attain majority. The guardian of the minors, the first respondent herein, is permitted to withdraw the interest once in three months directly from the bank.