Madras High Court
Pushpathal vs S.Samsudeen ... 1St on 28 June, 2021
C.M.A.No.1465 of 2016 and
C.M.A.No.156 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2021
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.1465 of 2016
and C.M.A.No.156 of 2017
and CMP No.1033 of 2017
1. Pushpathal
2. K.Selvi ... Appellants in CMA No.1465 /2016 &
Respondents 1 & 2 in CMA No.156/ 2017
..Vs..
S.Samsudeen ... 1st respondent in CMA No.1465 of 2016 &
3rd Respondent in CMA No.156/ 2017
IFCO TOKIO General Insurance Company Ltd.,
Tulsi Chambers
No.195, T.V. Samy Road
R.S. Puram,
Coimbatore – 2. ... 2nd Respondent in CMA No.1465/2016 &
Appellant in CMA No.156/2017
Common Prayer: Civil Miscellaneous Appeals filed under Section 173 of
the Motor Vehicles Act, 1988, against the Decree and order dated
23.03.2016 made in MCOP.No.1016 of 2011 on the file of the Motor
Accident Claims Tribunal, Additional District Court No.3, Tharapuram,
Tirupur District.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1465 of 2016 and
C.M.A.No.156 of 2017
For Appellant : Mr.N.S.Sivakumar
in CMA No.1465/2016
& Respondents 1 & 2 in
CMA No.156 of 2017
For R-2 in CMA No. : Mr.E.Rajadurai for
1465 of 2016 and M/s.N.Vijayaraghavan
Appellant in CMA No.
156 of 2017
For R-1 in CMA No. : No appearance.
1465 of 2016 and
R-3 in CMA No.
156 of 2017
COMMON JUDGMENT
(This Appeal has been taken up for hearing through Video Conferencing)
CMA No.1465 of 2016 has been filed by the claimants challenging
the impugned award dated 23.03.2016 passed by the Motor Accident Claims
Tribunal, Additional District Court No.3, Tharapuram, Tirupur District in
MCOP No.1016 of 2011 challenging the fixation of contributory negligence
against the deceased @ 50%. CMA No.156 of 0217 has been filed by the
Insurance Company challenging the very same award of the Tribunal also
questioning the contributory negligence fixed on the part of the driver of the
insured car @ 50%.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1465 of 2016 and
C.M.A.No.156 of 2017
2. Heard Mr.N.S.Sivakumar, learned counsel for the claimant and
Mr.E.Rajadurai, learned counsel for the Insurance Company.
3. The accident happened on 04.01.2011 as a result of collision
between two vehicles. The deceased Palanisamy Gounder was the rider of
the TVS 50 motor cycle and the said motor cycle collided with the car
bearing Regn.No.TN 38 AY 0158 insured with the appellant in CMA
No.156 of 2017.
4. It is the case of the claimants who are the dependents of the
deceased in MCOP No.1016 of 2011 that the deceased Palanisamy Gounder
as rider of the TVS 50 motor cycle was coming from his residence to
Kankeyam and when he was coming near Kampaliampatti pirivu to reach
East to West Kankeyam to Karur Main Road and he was waiting to cross the
road, at the northern extreme of the middle road, at that time, the car
bearing Regn.No.TN 38 AY 0158 insured with the appellant in CMA
No.156 of 2017 and driven by its driver Surendran coming from West to
East in a rash and negligent manner, dashed against the TVS 50 Motor cycle
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1465 of 2016 and
C.M.A.No.156 of 2017
in which the Palanisamy Gounder was the rider, which resulted in his death.
However, the same has been disputed by the appellant - Insurance Company
before the Tribunal, as seen from the counter filed by them. According to
them, the deceased Palanisamy Gounder is himself the tort feasor as only
due to his rash and negligent driving and without indicator, he had taken a
right turn in the highways and dashed against the car bearing Regn.No.TN
38 AY 0158. It is their case that the entire fault is on the part of the
deceased and therefore the appellant – Insurance Company is not liable to
compensate the claimants.
5. Before the Tribunal, the claimants filed nine documents which are
marked as Exs.P1 to P9 and two witnesses were examined on their side
namely Pushpathal, the wife of the deceased as PW1 and Mr.Balusamy, a
relative of PW2, who the claimants claim to be an eye witness to the
accident. On the side of the Insurance Company, three documents were
filed which were marked as Exs.R1 to R3 and one witness was examined
namely Mahalingam, the police official as RW1. Before the Tribunal, the
rough sketch was marked as Ex.R1.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1465 of 2016 and
C.M.A.No.156 of 2017
6. As seen from Ex.R1, the deceased Palanisamy Gounder who was
the rider of the TVS 50 motor cycle has taken a right turn in a junction road
in the highways and the insured car which was coming from West to East in
the junction road, in the left hand side of the road. The TVS 50 motor cycle
in which the deceased Palanisamy Gounder was rider, after taking the right
turn has collided with the insured car which was coming from West to East
direction in the left hand side of the road. The police official who was
examined as RW1 by the Insurance Company before the Tribunal in his
deposition has deposed that the accident happened only due to the fault of
the deceased. However, the FIR which was marked as Ex.P1 before the
Tribunal, based on a complaint given by a person by name Senthil has stated
that only due to rash and negligent driving by the driver of the insured car,
the accident had happened which resulted in the death of Palanisamy
Gounder. The Tribunal has taken into consideration the evidence available
on record and based on preponderance of probabilities, has fixed
contributory negligence on the part of the insured car as well as on the
deceased in the ratio of 50: 50. This Court has perused and examined the
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1465 of 2016 and
C.M.A.No.156 of 2017
impugned award as well as the oral and documentary evidence placed on
record before the Tribunal and it does not find any infirmity in the findings
of the Tribunal.
7. For the foregoing reasons, this court is of the considered view that
both the appeals, one filed by the Insurance Company and the other filed by
the claimants does not deserve any merits. In the result, both the Civil
Miscellaneous Appeals are dismissed.
8. It is represented by the learned counsel for the Insurance Company
that, as per the order of this court dated 03.02.2017 made in CMP No.1033
of 2017 in CMA No.156 of 2017, they have already deposited the entire
award amount before the Tribunal to the credit of MCOP.No.1016 of 2011.
In view of the same, this Court directs the Tribunal to transfer the amount
lying to the credit of MCOP.No.1016 of 2011 to the bank account of the
respondents/claimants through RTGS within a period of one week from the
date of receipt of a copy of this Judgment. No costs. Consequently,
connected miscellaneous petition is closed.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1465 of 2016 and
C.M.A.No.156 of 2017
28.06.2021
rgr
Index:Yes/No
Internet:Yes/No
To
1. The III Additional District Judge,
Motor Accident Claims Tribunal,
Tharapuram, Tirupur District.
2.The Section Officer
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.1465 of 2016 and
C.M.A.No.156 of 2017
ABDUL QUDDHOSE, J.
rgr
C.M.A.No.1465 of 2016
and CMA No.156 of 2017
28.06.2021
https://www.mhc.tn.gov.in/judis/
