Madras High Court
Saravanan @ Paul Saravanan vs O.Yogesh on 3 February, 2021
1 CMA No.290 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.290 of 2017
Saravanan @ Paul Saravanan ...Appellant
Vs
1.O.Yogesh
(R1 remained exparte before the Tribunal,
hence his presence may be dispensed with)
2.Oriental Insurance Co. Ltd.,
No.115/116, Second Floor,
Oriental House,
Prakasam Salai, Broadway,
Chennai 600 108. ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 13.04.2016 made
in M.A.C.T.O.P.No.7277 of 2013 on the file of the Motor Accidents Claims
Tribunal, V Court of Small Causes, Chennai.
For Appellant : Ms.A.Subadra
For Respondents : Mrs.Elveera Ravindran for R2
https://www.mhc.tn.gov.in/judis/
2 CMA No.290 OF 2017
R1-Exparte
JUDGMENT
Heard the learned counsel for the appellant and the learned counsel
for the second respondent.
2. The appeal is filed by the claimant being aggrieved by the fact
that the Tribunal has fixed 50% contributory negligence on his part and
reduced the award by 50% and further more, no adequate compensation was
granted for the disability.
3. The facts of the case is that on 04.08.2013 at about 09.50 p.m.,
when the appellant/claimant tried to cross the road in between Gandhi
Mandapam and Anna University, a pulsar motor cycle bearing Registration
No.TN 11X4091 dashed against him causing fractured injury. The claimant
was admitted in the hospital for the injuries and treated at Government
Royapettah hospital and shifted to a private hospital. The claim petition
seeking compensation of Rs.10,00,000/- against the owner of the two
wheeler and its insurer was made before the MACT, Chennai.
https://www.mhc.tn.gov.in/judis/
4. The Tribunal on considering the claim and the counter filed by the
Insurance Company, after appreciating the evidence, has fixed
compensation of Rs.3,65,000/-, out of which 50% was reduced for the
contributory negligence.
5. Learned counsel appearing for the appellant submitted that the
Tribunal erred in relying upon the sketch marked as Ex.R1 to hold that the
claimant has contributed for the accident. Relying upon the judgment of the
Supreme Court rendered in Jiju Kuruvila vs. Kunjujamma Mohan,
2013(4) CTC 252, the learned counsel for the appellant/claimant submitted
that the rough sketch marked as Ex.R1 and relied by the Tribunal to
apportion contribution is not a substantive proof. Further, relying upon the
judgment of the Supreme Court in Bimla Devi vs. Himachal Road
Transport Corporation, 2009 (1) TNMAC 700 (SC), the learned counsel
submitted that the standard of proof in case of accident claim should be
preponderance of probability and not strict proof. Having proved that the
claimant has sustained injury in the road accident and the offending vehicle
is the motor cycle insured under the second respondent, the Tribunal ought
not to have deducted towards negligence.
https://www.mhc.tn.gov.in/judis/
6.Per contra, learned counsel appearing for the Insurance Company
submitted that the claimant P.W.1 during the cross-examination had
accepted the details found in Ex.R1 is correct. He has accepted that the spot
on which he crossed the road there was a median and there was no provision
for pedestrian cross. Learned counsel submitted that the admission of the
claimant coupled with rough sketch Ex.R1 show enough material that when
the pedestrian cross near the signal is several feet away from the scene of
accident, the claimant, who crossed the road negligently, had invited the
accident and therefore, deduction of 50% towards contributory negligence is
proper and based on the record.
7.This Court after giving anxious consideration to the rival
submission, considering the deposition of the claimant as well as Ex.R1
find that the conclusion of the Tribunal regarding the quantum of
compensation and the contribution of the claimant for the accident is based
on evidence and need no interference except the percentage of contribution.
The photographs marked as Ex.P5, the Disability Certificate marked as
Ex.P8, the rough sketch marked as Ex.R1, the admission of the claimant
https://www.mhc.tn.gov.in/judis/
regarding the spot of accident on cumulative assessment lead to conclusion
by preponderance of probability that the injury sustained by the claimant
has caused 35% disability. The accident has occurred due to the
contributory negligence of the claimant. Instead of crossing the road from
the area marked for pedestrian cross, the claimant has attempted to cross the
road non pedestrian area and had invited the accident. However, the only
point which needs interference is the percentage of contribution. The rough
sketch indicates that had the victim or the motor vehicle rider vigilant about
the object upcoming, they could have averted the accident. Having failed to
do so, evitable has occurred. Instead of fixing 50% contribution on the part
of the claimant, this Court reduces his contribution to 25%.
8.Accordingly, the compensation is modified from Rs.1,82,500/- to
Rs.2,73,750/- with 7.5% interest from the date of numbering the petition
i.e.,05.12.2013 till the date of deposit. The Insurance Company shall deposit
the money within a period of twelve weeks from the date of receipt of a
copy of this judgment and on such deposit, the claimant is permitted to
withdraw the same on appropriate application.
Dr.G.JAYACHANDRAN,J.
https://www.mhc.tn.gov.in/judis/
VRI
9. Accordingly, the Civil Miscellaneous Appeal is partly allowed.
No order as to costs.
03.02.2021
Speaking/Non Speaking
Index :Yes/No
vri
To
Motor Accidents Claims Tribunal
V Court of Small Causes,
Chennai.
CMA NO.290 OF 2017
https://www.mhc.tn.gov.in/judis/
