Madras High Court
M/S.United India Insurance Co. ... vs M.Subramaniam on 6 January, 2021
1 CMA No.224 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.224 of 2017
and
C.M.P.NO.1467 of 2017
M/s.United India Insurance Co. Ltd.,
Branch Office,
3, 4th Floor, BOB Buildings,
State Bank Road,
Coimbatore. ....Appellant
Vs
1.M.Subramaniam
2.O.V.Rajendran ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 11.07.2012 made
in M.C.O.P.No.387 of 2009 on the file of the Motor Accidents Claims
Tribunal, III Additional District Judge, Erode at Gobichettipalayam.
For Appellant : M/s.I.Malar
For Respondents : Mr.Ma.P.Thangavel
https://www.mhc.tn.gov.in/judis/
2 CMA No.224 of 2017
JUDGMENT
(This case has been heard through Video Conferencing)
Heard the learned counsel for the appellant and the respondents.
2.The appeal is filed by the Insurance Company being aggrieved by
the quantum of compensation awarded by the Tribunal and the percentage
of contribution fixed on the driver of the vehicle which is insured under the
appellant.
3. The facts of the case is that on 02.07.2009, the first respondent
herein while riding his two wheeler beariing Registration No. TN-36E-2088
near Udaiyagounder palayam pirivu, Sathyamangalam-Gobipalayam main
road, the accident occurred due to collision with Jeep bearing Registration
No.TSC 3419.
4. According to the claimant, the jeep driver turned right side with
high speed in rash and negligent manner without observing road rules and
hit the first respondent two wheeler. In the said accident, the first
respondent sustained grievous injury on the left clavicle, head, knee, right
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elbow, chest and other parts of the body. He was taken to Gobipalayam
Government Hospital and later shifted to Coimbatore Medical College
Hospital. A case was registered against the jeep driver in Kadathur Police
Station in Crime No.165/2009. A claim petition for a sum of Rs.5,00,000/-
was filed by the first respondent before the MACT, Erode at Gobipalayam.
5. The Insurance Company as the appellant herein has filed the
counter stating that the accident as narrated in the claim petition is not true
and it was the negligence of the claimant which has caused the accident.
The jeep driver was cautiously and carefully driving his vehicle whereas the
claimant dashed against the jeep rash and negligently and caused the
accident. Also, it was contended that the claimant had no valid driving
license and the two wheeler was not duly insured.
6. Before the Tribunal, the claimant examined himself and the
Dr.Thambiraj as P.W.1 and P.W.2. 9 Exhibits were marked. On behalf of
the respondent, the final report of the police, which has closed the FIR as
mistake of fact was marked as Ex.R1 and 2 witnesses were marked on
behalf of the Insurance Company.
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7. The Tribunal, after appreciating the evidence, held that there is a
contributory negligence on the part of the claimant also for the accident,
therefore, apportioned the negligence between the jeep driver and the
claimant and awarded a sum of Rs.1,50,528/- after deducting 25% towards
contributory negligence.
8. The present appeal is filed stating that the Tribunal failed to take
note of the final report filed by the police after investigation wherein the
eyewitness has specifically stated that the accident occurred due to the
negligence of the claimant, who dashed against the jeep recklessly due to
his rash driving. Though the appellant has established the fact that the
accident occurred due to the fault of the claimant, apportioning only 25% of
the award amount for his contributory negligence is unfair and the
negligence ought to have been equally distributed among the claimant and
the jeep driver.
9. Learned counsel for the claimant/first respondent would submit
that Ex.R1 the final report and Section 161 Cr.P.C. statement relied by the
appellant Insurance Company are not admissible in evidence unless the
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person who has made the statement is examined by the Court. Further, the
learned counsel would submit that the Tribunal after considering the
evidence of P.W1 and P.W.2 and the facts elicited in the cross-examination
of R.W.1, had rightly come to the conclusion that the contribution on the
part of the claimant was 25% and for injuries sustained in the accident,
adequate medical records and bills have been produced to justify the award.
Furthermore, he would submit that the allegation of want of driving license
for the claimant and insurance coverage for two wheeler not been
established through adequate evidence by the Insurance Company and
therefore, no adverse inference could be drawn against the claimant.
10. On perusing the records in the light of the rival submissions made
by the counsel, this Court finds that the Tribunal has rightly assessed the
negligence as well as the quantum of compensation. Based on the available
material, the Tribunal has held that the contribution on the part of the
claimant is only 25%. There is no need to distribute the ratio of negligence
among the jeep driver and the claimant in the absence of contra evidence.
Hence, this Court confirms the award of the Tribunal and the Civil
Miscellaneous Appeal is dismissed.
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DR.G.JAYACHANDRAN,J.
Vri
11. The appellant is directed to deposit the award amount within a
period of eight weeks from the date of receipt of the copy of this order. On
such deposit, the claimant is permitted to withdraw the award amount on
appropriate application. No order as to costs. The connected miscellaneous
petition is closed.
06.01.2021
Speaking/Non Speaking
Index :Yes/No
vri
To
The Motor Accidents Claims Tribunal,
III Additional District Judge,
Erode at Gobichettipalayam.
CMA No.224 of 2017
https://www.mhc.tn.gov.in/judis/
