Madras High Court
Ravi vs Kalidoss on 6 January, 2021
C.M.A.No.1264 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.01.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1264 of 2019
Ravi .. Appellant
Vs.
Kalidoss .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 16.04.2014
made in M.C.O.P.No.188 of 2013 on the file of Motor Accident Claims
Tribunal, Chief Judicial Magistrate's Court, Nagapattinam.
For Appellant : Mr.R.Sankarappan
For Respondent : No appearance
JUDGMENT
This matter is heard through “Video-Conferencing”.
This Civil Miscellaneous Appeal has been filed by the owner of the
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C.M.A.No.1264 of 2019
vehicle against the award dated 16.04.2014 made in M.C.O.P.No.188 of 2013
on the file of Motor Accident Claims Tribunal, Chief Judicial Magistrate's
Court, Nagapattinam.
2.The appellant is the respondent in M.C.O.P.No.188 of 2013 on the
file of Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court,
Nagapattinam. The respondent filed the said claim petition claiming a sum
of Rs.3,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 29.06.2011.
3.According to the respondent, on the date of accident i.e., on
29.06.2011, he borrowed the two wheeler bearing Registration No.PY-01-
AR-6710 belonging to his owner. While one Sakthivel was riding the said
two wheeler along with the respondent as a pillion rider from Nagapattinam
and taking a turn from South Paalpannaicheri Main Road to
Sammandhanpettai Road at 8.15 p.m., the rider of the two wheeler bearing
Registration No.PY-02-A-6856 belonging to the appellant, which was coming
from South to North direction, rode the same in a rash and negligent manner,
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C.M.A.No.1264 of 2019
dashed against the two wheeler straightaway in which the respondent was
travelling as a pillion rider. Due to the said impact, the respondent fell down
and thus, the accident has occurred. In the accident, the respondent sustained
grievous injuries all over the body and hence, he filed the above said claim
petition claiming compensation against the appellant.
4.The appellant, owner of the two wheeler bearing Registration No.PY-
02-A-6856 filed counter statement denying the averments made in the claim
petition and stated that the accident did not occur due to rash and negligent
riding by the rider of the two wheeler bearing Registration No.PY-02-A-6856
belonging to the appellant. The rider of the two wheeler bearing Registration
No.PY-01-AR-6710 alone suddenly crossed the road without noticing the
oncoming two wheeler and invited the accident. Therefore, the rider of the
two wheeler bearing Registration No.PY-01-AR-6710 alone is responsible for
the accident and the respondent has contributed negligence for the accident.
The two wheeler bearing Registration No.PY-02-A-6856 was sold by the
appellant in the year 2000 and now he is not in possession of the said vehicle.
He is also not aware of the owner of the said vehicle. After receiving
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C.M.A.No.1264 of 2019
summons, the appellant came to know that the vehicle is in possession of one
Jeeva. Therefore, the said person is liable to pay compensation. The owner
and insurer of the two wheeler bearing Registration No.PY-01-AR-6710 are
not made as parties to the claim petition. Hence, the claim petition is bad for
non-joinder of necessary parties. The appellant has also denied the avocation,
income and nature of injuries sustained by the respondent. In any event, the
compensation claimed by the respondent is excessive and prayed for
dismissal of the claim petition.
5.Before the Tribunal, the respondent examined himself as P.W.1 and
Dr.Angathakumar was examined as P.W.2 and 13 documents were marked as
Exs.P1 to P13. The appellant examined himself as R.W.1 and marked two
documents as Exs.R1 and R2.
6.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to negligent riding by the rider
of the two wheeler bearing Registration No.PY-02-A-6856 belonging to the
appellant and directed the appellant to pay a sum of Rs.1,47,650/- as
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C.M.A.No.1264 of 2019
compensation to the respondent.
7.Against the said award dated 16.04.2014 made in M.C.O.P.No.188 of
2013, the appellant, owner of the two wheeler bearing Registration No.PY-
02-A-6856 has come out with the present appeal.
8.The learned counsel appearing for the appellant contended that the
accident has occurred only due to rash and negligent riding by one Sakthivel,
the rider of the two wheeler bearing Registration No.PY-01-AR-6710 and not
due to negligent riding by the rider of the two wheeler bearing Registration
No.PY-02-A-6856. The rider of the two wheeler bearing Registration No.PY-
02-A-6856 was acquitted in the criminal case. The appellant examined
himself as R.W.1 and marked the rough sketch as Ex.R2. The appellant
proved that the accident has occurred due to negligence on the part of the
rider of the two wheeler bearing Registration No. PY-01-AR-6710. The
Tribunal failed to consider the evidence of the appellant as R.W.1 and
Ex.R2/rough sketch and erroneously fixed entire negligence on the part of the
rider of the two wheeler bearing Registration No.PY-02-A-6856. The learned
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C.M.A.No.1264 of 2019
counsel further contended that P.W.2/Doctor assessed the disability of the
respondent after three years of the accident and assessed the disability at 32%
without any examination. The Tribunal failed to see that P.W.2/Doctor has
admitted that he did not see the Accident Register and wound certificate
issued by the Government Hospital, Nagapattinam, to fix the disability at
32%. P.W.2/Doctor himself admitted that he has not seen the medical records
before certifying the disability. The total compensation awarded by the
Tribunal is excessive and prayed for setting aside the award of the Tribunal.
9.Though notice has been served on the respondent and his name is
printed in the cause list, there is no representation on behalf of him either in
person or through counsel.
10.Heard the learned counsel appearing for the appellant and perused
the entire materials on record.
11.It is the case of the respondent that while he was coming from
West to East direction in the two wheeler bearing Registration No.PY-01-AR-
6710 and was turning towards South direction, the rider of the two wheeler
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C.M.A.No.1264 of 2019
bearing Registration No.PY-02-A-6856, who was coming from South to
North direction, dashed against the two wheeler in which the respondent was
travelling as a pillion rider and caused the accident. To prove the said
contention, the respondent examined himself as P.W.1 and marked F.I.R. as
Ex.P1, which was registered against the rider of the two wheeler bearing
Registration No.PY-02-A-6856. On the other hand, it is the case of the
appellant that the respondent while coming from West to East direction in the
two wheeler bearing Registration No.PY-01-AR-6710, turned towards South
direction without noticing the vehicle, which was coming from South to
North direction, dashed on the two wheeler bearing Registration No.PY-02-
A-6856 and thus the accident has occurred only due to negligence on the part
of the respondent. The appellant has also contended that the rider of the two
wheeler bearing Registration No.PY-02-A-6856 was acquitted in the criminal
case. To substantiate the said contention, the appellant examined himself as
R.W.1 and marked judgment in the criminal Court in C.C.No.4 of 2013 and
rough sketch as Exs.R1 and R2 respectively.
12.From the award of the Tribunal, it is seen that the Tribunal
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C.M.A.No.1264 of 2019
considering the evidence of respondent and F.I.R., held that the accident has
occurred due to rash and negligent riding by the rider of the two wheeler
bearing Registration No.PY-02-A-6856. The Tribunal has not considered the
evidence of the appellant as R.W.1 and rough sketch marked by him as
Ex.R2. From the materials on record, it is seen that while the rider of the two
wheeler bearing Registration No.PY-02-A-6856 was coming from South to
North direction, the accident has occurred. According to the respondent, he
was coming from West to East direction and turned towards South direction,
when the accident occurred. Considering the above pleadings, the documents
marked and the rival contentions of the parties, it is clear that both the riders
of the two wheeler contributed to the accident. The Tribunal committed error
in not considering the evidence of the appellant as R.W.1 and rough sketch
marked by him and erroneously fixed entire negligence on the part of the
rider of the two wheeler bearing Registration No.PY-02-A-6856. Considering
the materials in its entirety, this Court fixes negligence equally on both the
riders of the two wheeler. The appellant is liable to pay only 50% of the
compensation awarded to the respondent.
13.The contention of the learned counsel appearing for the appellant
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C.M.A.No.1264 of 2019
that the appellant has sold the vehicle in the year 2000 itself and he is not the
owner of the vehicle at the time of accident, is not acceptable. From the
materials on record, it is seen that in the Registration Certificate, the appellant
is shown as owner. The Hon'ble Apex Court in the judgment reported in
(2018) 3 SCC (Naveen Kumar vs. Vijay Kumar and others), held in
paragraph-13, which is as follows:
“13. The consistent thread of reasoning which
emerges from the above decisions is that in view of the
definition of the expression “owner” in Section 2(30), it is
the person in whose name the motor vehicle stands
registered who, for the purposes of the Act, would be
treated as the “owner”. However, where a person is a minor,
the guardian of the minor would be treated as the owner.
Where a motor vehicle is subject to an agreement of hire
purchase, lease or hypothecation, the person in possession
of the vehicle under that agreement is treated as the owner.
In a situation such as the present where the registered
owner has purported to transfer the vehicle but continues to
be reflected in the records of the registering authority as the
owner of the vehicle, he would not stand absolved of
liability. Parliament has consciously introduced the
definition of the expression “owner” in Section 2(30),
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C.M.A.No.1264 of 2019
making a departure from the provisions of Section 2(19) in
the earlier Act of 1939. The principle underlying the
provisions of Section 2(30) is that the victim of a motor
accident or, in the case of a death, the legal heirs of the
deceased victim should not be left in a state of uncertainty.
A claimant for compensation ought not to be burdened with
following a trail of successive transfers, which are not
registered with the registering authority. To hold otherwise
would be to defeat the salutary object and purpose of the
Act. Hence, the interpretation to be placed must facilitate
the fulfilment of the object of the law. .. ... ”
The Hon'ble Apex Court has held that the claimant cannot go on searching
who is the real owner and make a claim when the name of the
owner/transferer was not changed in the R.C.Book. The person who is shown
as owner in R.C.Book is liable to pay compensation to the claimant.
14.In the present case, though the appellant contended that he sold the
vehilce in the year 2000 itself, he is shown as owner in Registration
Certificate. In view of Section 2(30) of the Motor Vehicles Act and the
judgment of the Hon'ble Apex Court referred to above, the appellant is liable
to pay compensation to the respondent. Hence, the appellant is directed to
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C.M.A.No.1264 of 2019
pay 50% of the compensation awarded to the respondent.
15.As far as quantum of compensation is concerned, it is the case of the
appellant that P.W.2/Doctor without examining the appellant issued disability
certificate and the counsel for the appellant relied on evidence of
P.W.2/Doctor. P.W.2/Doctor in his cross-examination has admitted that he
does not know that the injuries and fractures suffered by the respondent are
due to the accident and that he has not verified the medical records. In view
of the same, the assessment of disability by P.W.2/Doctor at 32% is
erroneous and the disability certificate issued by P.W.2/Doctor is rejected.
The respondent is not entitled to any compensation for disability. Hence, a
sum of Rs.64,000/- awarded by the Tribunal towards disability is liable to be
set aside and is hereby set aside. The amounts awarded by the Tribunal under
all other heads are just and reasonable and hence, the same are hereby
confirmed. Thus, the compensation awarded by the Tribunal is modified as
follows:
S.No Description Amount awarded Amount Award
by Tribunal awarded by confirmed or
(Rs) this Court enhanced or
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C.M.A.No.1264 of 2019
(Rs) granted or
reduced
1. Transportation 5,000 5,000 Confirmed
2. Extra 5,000 5,000 Confirmed
nourishment
3. Attendant 5,000 5,000 Confirmed
charges
4. Medical 53,636 53,636 Confirmed
expenses
5. Pain and 15,000 15,000 Confirmed
suffering
6. Disability 64,000 - Set aside
7. Total 1,47,636 83,636
rounded off to rounded off to Reduced by
1,47,650 83,650 Rs.1,05,825/-
50% of the 41,825 (1,47,650 –
award amount 41,825)
16.In the result, the Civil Miscellaneous Appeal is partly allowed. The
compensation of Rs.1,47,650/- awarded by the Tribunal is hereby reduced to
Rs.83,650/- together with interest at the rate of 7.5% per annum from the date
of petition till the date of deposit. The appellant is directed to deposit a sum
of Rs.41,825/- being 50% of the award amount now determined by this Court
along with interest and costs, less the amount already deposited if any, within
a period of six weeks from the date of receipt of a copy of this judgment. On
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C.M.A.No.1264 of 2019
such deposit, the respondent is permitted to withdraw the award amount now
determined by this Court along with interest and costs, less the amount if any,
already withdrawn. The appellant is permitted to withdraw the excess amount
lying in the deposit to the credit of M.C.O.P.No.188 of 2013 on the file of
Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court,
Nagapattinam, if the entire award amount has already been deposited by
them. No costs.
06.01.2021
Index : Yes / No
Internet : Yes/ No
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To
1.The Chief Judicial Magistrate
Motor Accident Claims Tribunal
Nagapattinam.
2.The Section Officer
V.R.Section
High Court, Chennai.
V.M.VELUMANI, J.,
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C.M.A.No.1264 of 2019
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C.M.A.No.1264 of 2019
06.01.2021
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