CMA/3165/2021 of THE DIVISIONAL MANAGER Vs SATHYA on 25 September 2026

Judgment

(Judgment of the Court was delivered by N.Mala J.)

(1) The Insurance Company, aggrieved by the Award of the Claims Tribunal, dated 13.03.2020, made in MCOP.No.713/2018, has filed the above appeal.

(2) For the sake of convenience, the parties will be referred to as per their rank before the Claims Tribunal.

(3) The summary of facts are as follows:- The legal heirs of the deceased Purushothaman, filed the claim petition, claiming a sum of Rs.90 lakhs as compensation for his death in a motor accident, which occurred on 26.02.2018. According to the claimants, on 26.02.2018, at about 9.00 a.m., on Tiruvannamalai-Chengam Road, near Thennamedu Jalli Machine, the deceased while driving as a pillion-rider in Bajaj Vespa motorcycle, bearing Regn.No.TN------, died due to the serious injuries sustained by him, when the motorcycle capsized due to the rash and negligent driving of the rider, the 1st respondent in the claim petition. According to the claimants, the deceased was aged 38 years at the time of the accident and as a AC mechanic, was earning Rs.30,000/- per month as salary. Since the deceased, the sole breadwinner of the family, had died in the accident, they filed the claim petition, claiming Rs.90 lakhs as compensation for his death.

(4) Before the Claims Tribunal, the 1st respondent remained exparte. The claim petition was contested by the 2nd respondent / Insurance

Company. The 2nd respondent, in its counter, submitted that there was no consistency in the contentions of the claimants regarding the alleged accident. The 2nd respondent contended that as per the FIR-Ex.P1, which was lodged by one of the pillion-riders, that the accident occurred due to the bursting of the back wheel tyre. Whereas, in the claim petition, it was alleged that the 1st respondent, the negligence of the rider of the motorcycle, resulted in the accident. The 2nd respondent contended that the deceased had contributed to the accident and also it was a case of ''no fault'' liability and therefore, the 2nd respondent is not liable to pay any compensation. The 2nd respondent further contended that the back wheel tyre of the motorcycle would have burst because of overloading of the vehicle in which three persons had travelled. The 2nd respondent contended that it was a clear case of contributory negligence and therefore, the 2nd respondent was not liable to pay any compensation. The 2nd respondent further stated that since the criminal case against the 1st respondent, was closed with an endorsement ''further action dropped'' vide RCS.No.49/2018, dated 26.09.2018, by the learned Judicial Magistrate No.2, Tiruvannamalai, it was not a fit case for fixing the liability on the rider of the motorcycle and therefore, no compensation would be paid by the 2nd respondent. The 2nd respondent, further denied the age, occupation and income of the deceased and hence, stated that the petition deserved to be dismissed.

(5) Before the Claims Tribunal, the claimants examined two witnesses and marked 18 documents. The 2nd respondent examined one witness and marked one document.

(6) The Claims Tribunal, on consideration of the entire evidence on record, found that the negligence of the 1st respondent, the rider of the motorcycle resulted in the accident. The Claims Tribunal, on the basis of the evidence on record, awarded a total compensation of Rs.57,78,369/- to the claimants along with 7.5% of interest per annum.

(7) The Claims Tribunal further found that 2nd respondent, as the insurer of the rider-cum-owner of the motorcycle, was liable to pay compensation. Aggrieved by the Award passed by the Claims Tribunal, the 2nd respondent has filed the above appeal.

(8) The 2nd respondent filed an application in CMP.No.17869/2022, for receipt of additional evidence, namely, the insurance policy. The 2nd respondent relied on the said policy for the purpose of contending that the policy was only an ''act-on'' policy and therefore, the 2nd respondent was not liable to pay compensation to the legal heirs of the deceased pillion-rider.

(9) The claimants filed a counter to the aforesaid application, in which they contended that the additional documents sought to be produced as additional evidence, deserves to be rejected since it does not satisfy the mandatory provisions of Order XLI Rule 27 of CPC. The claimants contended that since the 2nd respondent was the custodian of the policy, absolutely there was no justification by them for not having produced the policy before the Claims Tribunal. The claimants therefore submitted that there was lack of diligence on the part of the 2nd respondent in not producing the document at the earliest point of time despite having custody of it. The claimants further contended that for the additional evidence sought to be marked, there was no plea raised in the counter. It was submitted that in the absence of a foundational plea for receiving the additional evidence, the same could not be received and that too, for the purpose of patching up the weaknesses in the 2nd respondent's case. It was further contended that only a Xerox copy of the policy was sought to be produced as additional evidence and therefore, it is inadmissible evidence since secondary evidence can be filed only as per the provisions of Sections 63 and 65 of the Indian Evidence Act. For the aforesaid reasons, the claimants prayed to dismiss the petition in CMP..No.17869/2022.

(10) We have heard both the learned counsels and perused the materials placed on record.

(11) From the affidavit filed in support of CMP.No.17869/2022, it is seen that the policy is sought to be marked for wriggling out of the liability of the 2nd respondent on the ground that the policy is an ''act on'' policy and therefore, the risk of death of the pillion-rider is not covered by it.

(12) The only reason cited by the 2nd respondent for the belated production of the policy copy is that the 1st respondent, who was the owner of the motorcycle, remained exparte and since the deceased was his brother, he purposely failed to contest the case and produce the insurance policy.

(13) It is seen that the 1st respondent remained exparte before the Claims Tribunal and the claim petition was contested by the 2nd respondent. While so, the Insurance Company should have taken steps to file the copy of the policy before the Claims Tribunal. Even now, only a Xerox copy of the policy is marked. It is trite that to admit additional evidence, the provisions of Order XLI Rule 27 of CPC, ought to be complied with. Under the provisions of Order XLI Rule 27 of CPC, the 2nd respondent is bound to plead that in spite of due diligence, it was not able to produce the document before the Claims Tribunal.

(14) A perusal of the evidence filed in support of CMP.No.17869/2022, shows that there is absolutely no whisper about any diligence having been exercised by it. For producing the policy copy, which undoubtedly it possessed. The 2nd respondent has shifted the blame on the 1st respondent for not producing the copy before the Claims Tribunal. When the 1st respondent was set exparte, nothing prevented the 2nd respondent from producing the policy copy before the Claims Tribunal. Therefore, the learned counsel for the claimants is justified in his objection to the production of the additional evidence. Further, it is seen that to admit additional evidence, a foundation has to be laid in pleadings. In the instant case, there is absolutely no whisper about the policy being an ''act on'' policy. On the contrary, there is absolutely no pleading on the nature of the policy, namely, that it was only an ''act on'' policy, not covering the risk of death of a pillion rider. In the absence of a basic plea with regard to the liability of the Insurance Company on the basis of the policy, the additional evidence sought to be produced now, cannot be accepted. The liability was sought to be evaded on the ground that there was violation of the road rules, and permit conditions by the overloading of the motorcycle. Hence, as rightly contended by the claimants, in the absence of a plea, the policy cannot be accepted for the sake of patching up the weaknesses of the 2nd respondent's case. We also find that only the photocopy of the policy is filed and there is absolutely no explanation for not producing the original. We find that even for the said reason, the additional evidence cannot be permitted to be produced at this stage. Hence, CMP.No.17869/2022 is dismissed.

(15) The only point that was raised before this Court at the time of arguments, apart from the nature of the policy as stated above, was that it was a case of ''no fault'' liability and therefore, the Insurance Company was not liable to pay the compensation. For the said contention, the 2nd respondent relied on the criminal case filed against the 1st respondent and the genesis of the FIR, which was subsequently

closed with an endorsement ''further action dropped [FAD]'' vide RCS.No.49/2018, dated 26.09.2018, by the learned Judicial Magistrate No.2, Tiruvannamalai. It is the contention of the 2nd respondent that in the FIR, the negligence is not attributed to the 1st respondent, the rider of the motorcycle. Therefore, it is a case of ''no fault''. The learned counsel, in the same breadth, submitted that the accident occurred only due to the overloading of the motorcycle and therefore, the deceased contributed to the accident.

(16) In the FIR, it was stated as follows:- to type

(17) PW2, an eyewitness to the accident, in his evidence, stated that the accident occurred only due to the rash and negligent driving of the 1st respondent. PW2, in his evidence, stated as follows:-to type

(18) A suggestion was put to PW2 that he was not present at the scene of the accident. But, he denied the same. PW2, in his cross-examination, categorically stated that the accident did not occur due to the bursting of the back wheel tyre, but it was due to the rash driving of the rider of the two-wheeler. The FIR was admittedly filed by one Ajithkumar, who was riding pillion in the said motorcycle along with the deceased and he is a relative of the deceased and the 1st respondent. Therefore, in all probability, he has not referred to the negligent driving of the 1st respondent since Ajithkumar, the complainant, is related to both the deceased and the 1st respondent and he has not mentioned about the negligence of the 1st respondent. However, PW2, the eyewitness to the accident, specifically deposed that it was only the 1st respondent's negligence which caused the accident. The Claims Tribunal rightly held that it could independently consider the issue of negligence despite the closure of the criminal case as ''further action dropped''. I the light of PW2's evidence, the Claims Tribunal found that the 1st respondent's negligence resulted in the accident and that the 1st respondent was also negligent in maintaining the motorcycle in a proper manner and that the bursting of the rear wheel tyre was only due to the bad maintenance of the motorcycle. The 2nd respondent has not let in any independently evidence to show that the bursting of the rear wheel tyre was only because of overloading when the claimants had established through PW2 that it was not because of overloading of the rear wheel tyre but because of the rash and negligent driving of the 1st respondent. We are not inclined to accept the 2nd respondent's contention that it is a case of ''no fault''. The 2nd respondent has also taken a plea that the deceased as a pillion rider, contributed to the accident. According to the 2nd respondent, by taking risk of travelling in a two-wheeler as a third passenger, the 1st respondent has contributed to the accident. We are afraid we cannot countenance the said submission because it is trite that mere travelling of three persons in a two-wheeler cannot lead to an inference of negligence and that, it should be proved as a fact. In other words, the 2nd respondent is bound to prove that only because of overloading of the motorcycle, the accident occurred. Moreover, as already stated above, on the basis of the evidence on record, the Tribunal has found that even the bursting of the tyre was only due to the bad maintenance of the vehicle and therefore, the 1st respondent was bound to maintain the motorcycle in a road-worthy manner and having failed to maintain it, was rightly held to be negligent. Since the 2nd respondent, in its counter affidavit, did not deny the existence of a policy for the motorcycle at the time of the accident and its liability in terms of the policy, we are of the view that the 2nd respondent is bound to compensate the claimants.

(19) In view of the above discussion, we find no merit in the Civil Miscellaneous Appeal, and hence, the same is dismissed.

(20) The Insurance Company is directed to deposit the Award amount of Rs..57,78,369/- [Rupees Fifty Seven Lakhs Seventy Eight Thousand Three Hundred and Sixty Nine only], along with interest at 7.5% per annum, from the date of petition till the date of deposit, within a period of twelve weeks from the date of receipt of copy of the web copy of the judgment, if not already deposited. On such deposit, the claimants shall be entitled to withdraw the same along with the accrued interest in the proportion directed by the Claims Tribunal, by filing appropriate application before the Tribunal. No costs. Consequently, the connected miscellaneous petition in CMP.No.17898/2021 is closed and the miscellaneous petition in CMP.No.17869/2022 is dismissed. (P.T.A.,J.) (N.M.,J.) 25-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No AP To

1. The Special Sub Judge, Motor Accidents Claims Tribunal Tiruvannamalai.

2. The Section Officer, VR Section, High Court, Chennai.

P.T.ASHA J. AND N.MALA J. AP CMA No. 3165 of 2021 25-09-2026