Madras High Court
Narahari vs Kumarasankar on 28 April, 2021
C.M.A.Nos.2873 of 2011 & 118 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.M.A.Nos.2873 of 2011 & 118 of 2010 and
MP.No.1 of 2010
CMA.No.2873 of 2011
Narahari ... Appellant
Versus
1.Kumarasankar
2.National Insurance Co. Ltd.,
Divisional Office-1, 2nd Floor,
L.R.N.complex, Saradha College Road,
Salem-7
(1st respondent set exparte) ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the award and decree passed by the Motor Accident
Claims Tribunal, Additional District Judge and Special Judge, E.C.Act,
Salem dated 13.10.2009 made in MCOP.No.1401 of 2003.
For Appellant : Mr.K.Kuppusamy
For R2 : Mr.D.Bhaskaran
R1 : Exparte
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.2873 of 2011 & 118 of 2010
CMA.No.118 of 2010
National Insurance Co. Ltd.,
Divisional Office-1, 2nd Floor,
L.R.N.complex, Saradha College Road,
Salem ... Appellant
Versus
1.K.Narahari
2.P.Kumarasankar ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the award and decree dated 13.10.2009 made in
OP.No.1401 of 2003 on the file of the Motor Accidents Claims Tribunal
(Additional District Court and Special Court (Essential Commodities Act),
Salem
For Appellant : Mr.D.Bhaskaran
For R1 : Mr.K.Kuppusamy
R2 : No appearance
COMMON JUDGMENT
These appeals have been laid as against the award and decree passed
by the Motor Accident Claims Tribunal, Additional District and Special
Judge, E.C.Act, Salem dated 13.10.2009 made in MCOP.No.1401 of 2003.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.2873 of 2011 & 118 of 2010
2. For the sake of convenience, the parties are referred to
hereunder according to their litigative status before the Tribunal.
3. In CMA.No.2873 of 2011, the case of the claimant is that on
16.07.2003, when he was riding his motorcycle with pillion rider, the lorry
owned by the first respondent driven by its driver, while overtaking the
claimant and without giving any signal, all of sudden stopped the lorry.
Therefore, the claimant who was going behind the lorry hit the lorry and
sustained injuries. Immediately he was taken to hospital for taking
treatment. Therefore, the claimant filed claim petition seeking compensation
at Rs.5,00,000/-.
4. Resisting the same, the insurance company filed counter stating
that the accident took place only due to the negligence of the claimant and
as such the insurance company is not held to be liable for any compensation
and sought for dismissal of the claim petition.
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C.M.A.Nos.2873 of 2011 & 118 of 2010
5. On the side of the claimant, examined P.W.1 to P.W.3 and
marked Ex.P.1 to Ex.P.13. On the side of the respondents they examined
R.W.1 and marked Ex.R.1. On the basis of the evidence available on records
and also considering the submission made by the learned counsel appearing
on either side, the Tribunal fastened negligence on the part of the driver of
the first respondent and respondents are directed to pay the compensation
jointly and severally. Aggrieved by the same, both the claimant as well as
the insurance company filed these appeals for enhancement of award
amount as well as challenging the negligence.
6. The learned counsel appearing for the claimant submits that
the claimant sustained injuries on his face and he lost his two teeth. He was
admitted as inpatient from 16.07.2003 to 01.08.2003. Even after discharge
from the hospital, he was taking treatment as out patient in various
hospitals. Even though, the Tribunal awarded only very meager
compensation. Therefore, he prayed for enhancement of the award amount.
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C.M.A.Nos.2873 of 2011 & 118 of 2010
7. Per contra, the learned counsel appearing for the insurance
company would submit that the Tribunal ought to have seen that the Ex.P1,
FIR which was registered on the complaint lodged by the driver of the
vehicle owned by the first respondent against the claimant. The accident
took place only on the rash and negligent driving of the claimant and he
without maintaining distance between two vehicles, he himself hit the lorry
and sustained injuries. Therefore, he is the tort feaser and he is not entitled
for any claim. Motor Vehicle Inspection Report also revealed that the rear
right hand side of the brake light and indicator were damaged due to the two
wheeler was driven by the claimant hit on the right hand of the lorry. If the
stand taken by the claimant is taken into consideration, while lorry was
overtaking him without signaling turned left hand side and stopped vehicle,
if at all the lorry stopped while overtaking him, the claimant would have hit
the left hand side of the brake light and indicator of the lorry. Therefore, the
accident took place only on the rash and negligent driving of the claimant
and he is not entitled for any compensation.
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C.M.A.Nos.2873 of 2011 & 118 of 2010
8. Heard Mr.K.Kuppusamy, learned counsel appearing for the
claimant and Mr.D.Bhaskaran, learned counsel appearing for the insurance
company.
9. According to the claimant, when the lorry which was driven by
its driver owned by the first respondent, by overtaking the two wheeler
without signaling, he suddenly applied brake and as such the claimant hit
the lorry, due to which he sustained grievous injuries. Though on the
complaint lodged by the driver of the lorry, FIR was registered as against
the claimant, the Inspector of Police who investigated the crime filed charge
sheet as against the driver of the lorry. The driver of the lorry admitted his
guilt and also paid fine. That apart, on perusal of the FIR in Cr.No.383 of
2003 registered under Sections 279 and 338 of IPC revealed that when the
lorry was proceeding to Madurai near Kandhampatti Flyover, a bus was
trying to overtake the lorry and as such the lorry driver stopped the lorry on
the left hand side of the road. After stopping the lorry, the claimant hit the
lorry on its behind and sustained injuries. Therefore, there are controversial
version in the FIR, charge sheet and also statement of the claimant.
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C.M.A.Nos.2873 of 2011 & 118 of 2010
However, the vehicle owned by the first respondent was duly registered with
the second respondent and as such the Tribunal rightly fixed liability on the
insurance company and the owner of the vehicle and they were directed to
pay compensation.
10. Insofar as quantum of compensation is concerned, the Tribunal
rightly awarded just and fair compensation for injuries sustained by the
claimant and it does not require any enhancement by this Court.
11. Accordingly, in both the civil miscellaneous appeals, the
following orders are passed:-
(i) The insurance company and the owner of the vehicle
are directed to deposit the total compensation of
Rs.1,92,450/- with accrued interest and costs as
determined at by the Tribunal jointly and severally,
within a period of six weeks from the date of receipt of a
copy of this judgment, after adjusting the amount, if any,
already deposited.
(ii) On such deposit, the claimant is permitted to
withdraw the same in accordance with law, less the
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C.M.A.Nos.2873 of 2011 & 118 of 2010
amount if any already withdrawn by him.
With the above directions, these Civil Miscellaneous Appeals are
dismissed. Consequently, connected miscellaneous petition is closed. No
Costs.
28.04.2021
Index:Yes/No
Internet: Yes/no
lok
To
1.The Motor Accident Claims Tribunal,
Additional District and Special Judge,
E.C.Act, Salem
2.The Section Officer,
V.R.Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.2873 of 2011 & 118 of 2010
G.K.ILANTHIRAIYAN, J.
lok
C.M.A.Nos.2873 of 2011 & 118 of 2010
28.04.2021
https://www.mhc.tn.gov.in/judis/
