Madras High Court
S.Joseph Brito vs K.Mohammed Abbal Kaisor on 26 November, 2021
C.M.A.(MD)No.400 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.11.2021
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD)No.400 of 2012
1.S.Joseph Brito
2.J.Saroja ...Appellants/Petitioners
Vs.
1.K.Mohammed Abbal Kaisor
2.The Branch Manager
Bajaj Alliance General Assurance Company Ltd.,
12-G, Ram Nagar, Bye-Pass Road,
Madurai. ...Respondents/Respondents
PRAYER: Civil Miscellaneous Petition is filed under Section 173 of
M.V.Act, 1988, to modify the judgment and decree, dated 24.06.2011 made
in MCOP.No.169 of 2009 on the file of Motor Accidents Claims Tribunal
(Additional District Court/Fast Track Court No.II), Thoothukudi.
For Appellants : Mr.S.Siva Thilakar
For R-1 : No Appearance
For R2 : Mr.J.S.Murali
For R3 : Mr.K.K.Ramakrishnan
1/6
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C.M.A.(MD)No.400 of 2012
JUDGMENT
This Civil Miscellaneous Appeal has been filed to modify the judgment
and decree, dated 24.06.2011 made in MCOP.No.169 of 2009 on the file of
Motor Accidents Claims Tribunal (Additional District Court/Fast Track Court
No.II), Thoothukudi.
2. It is a case of fatal accident, which took place on 02.01.2009 at
about 12.00 hours, the deceased Melegon was sitting on the three wheel
cycle, which was stopped on the west side of the Tiruchendur to
Kulasekarapattinam near Allanthalai bus stop. At that time, the driver of the
first respondent's bus, bearing Registration No.TN-23-AD-3890, came on the
same road from south to north, driven by its driver in a high speed without
control, in rash and negligent manner and dashed against the deceased. As a
result of which, the deceased fell down and sustained head injuries and
multiple fractures all over the body and died on the spot and FIR has been
registered in Cr.No.3/09 under Section 279, 337 and 304(A) IPC against the
first respondent's driver.
3. The claimants have filed a petition in M.C.O.P.No.169 of 2009 on
the file of the Motor Accidents Claims Tribunal (Additional District
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C.M.A.(MD)No.400 of 2012
Court/Fast Track Court No.II), Thoothukudi, seeking compensation.
4.Before the Tribunal, on the side of the appellants/claimants two
witnesses were examined as P.W.1 and P.W.2 and four documents were
marked as Exs.P.1 to P.4. On the side of the respondents one witness was
examined as R.W.1 and two documents were marked as Ex.R1 and Ex.R2.
5.The Tribunal, after considering the pleadings, oral and documentary
evidences and the arguments of the counsel for the appellants and
respondents and also on appreciating the evidences on record, held that the
accident occurred only, due to the rash and negligent driving of the driver of
the first respondent's bus and directed the first respondent to pay a sum of
Rs.2,46,500/- as compensation.
6.Against which, the appellants/petitioners have filed this present
appeal to modify the judgment and decree passed by the Tribunal.
7.Eventhough, paper publication was effected no one appeared for the
first respondent. Heard the learned counsel appearing for the appellants and
the learned counsel appearing for the second and third respondents and
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C.M.A.(MD)No.400 of 2012
perused the materials available on record.
9.The learned counsel appearing for the third respondent has filed a
Memo stating that the Insurance Company have no objection in allowing the
appeal of the claimants to the extent of Rs.2,00,000/- with interest at the rate
of 7.5% pa., from the date of filing of the claim petition with a further
direction to recover the amount from the owner of the vehicle in the same
execution proceedings, for which, the appellants / claimants have no
objection.
10.Recording such undertaking given by the learned counsels
appearing on either side, this Court has no hesitation in allowing the appeal.
Accordingly, this Civil Miscellaneous Appeal is partly allowed and the
amount of Rs.2,46,500/- awarded by the Motor Accidents Claims
Tribunal(Additional District Judge/Fast Track Court No.II), Thoothukudi, is
reduced to Rs.2,00,000/-. The appellants are entitled to get Rs.2,00,000/-
(Rupees Two lakhs only) with interest at the rate of 7.5% p.a., from the date
of claim petition till the date of realization. Except the above, all the other
terms of the award passed by the Tribunal is confirmed.
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C.M.A.(MD)No.400 of 2012
11.The third respondent is directed to deposit the award amount, now
fixed by this Court, within a period of four weeks from the date of receipt of
a copy of this order, if not already deposited. On such deposit, the
appellants/claimants are permitted to withdraw the same, by filing necessary
application before the Tribunal. If the entire award amount is already paid by
the Insurance Company, the Insurance Company is permitted to withdraw the
excess amount with accrued interest. No Costs.
26.11.2021
Index :Yes/No
Internet:Yes/No
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Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
To
1.The Motor Accidents Claims Tribunal
(Additional District Court/Fast Track Court No.II),
Thoothukudi.
2. The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)No.400 of 2012
S.ANANTHI, J.
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Judgment made in
C.M.A.(MD)No.400 of 2012
26.11.2021
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