Madras High Court
The Divisional Manager vs Jayaraman on 21 April, 2022
C.M.A.No.73 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.04.2022
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
C.M.A.No.73 of 2022
The Divisional Manager,
National Insurance Company Limited,
No.110, Jawarhalal Nehru Street,
Puducherry ... Appellant
-Vs.-
1. Jayaraman
2. Manikandan ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the decree and judgement passed in
M.A.C.T.O.P.No.1125 of 2015 dated 24.06.2020 on the file of the Motor
Accident Claims Tribunal, 1st Additional Subordinate Court, Cuddalore
District.
For Appellant : Ms.N.B.Sureka
For R1/Caveator : Mr.B.Jawahar
For R2 : Served-No Appearance
JUDGMENT
The Insurance Company has filed the above appeal, challenging the
award passed by the learned I Additional Subordinate Judge, (Motor Accident
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C.M.A.No.73 of 2022
Claims Tribunal) at Cuddalore in M.A.C.T.O.P.No.1125 of 2015, dated
24.06.2020.
2. The facts in brief are as follows:-
The claimant had filed the above claim petition seeking compensation of
a sum of Rs.15,00,000/- (Rupees fifteen lakhs only) towards the injuries
sustained by him in a road accident involving the vehicle, namely, Hero Honda
bike, bearing Registration No.TN-31-AK-6788 belonging to the first
respondent and insured with the second respondent-Insurance Company. It is
the case of the claimant that on 20.02.2015, when he was riding his motor bike,
bearing Registration No.TN-31-AK-698 TVS XL and proceeding on the
Cuddalore-Panruti Main Road, as he neared the Kondur Picnic Hotel, the first
respondent's bike hit him from the rear side, as a result of which, the claimant
had sustained injuries. Immediately, he was rushed to the Cuddalore
Government Hospital and thereafter, to the Abhirami Private Hospital at
Cuddalore and other private hospitals from 22.02.2015 till date.
3. The first respondent before the Tribunal remained ex-parte and it was
the second respondent-Insurance Company, which had contested the case.
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C.M.A.No.73 of 2022
4. The appellant / second respondent-Insurance Compnay had filed a
counter affidavit inter-alia contending that the Cuddalore N.T.Police Station,
after investigation, had come to know that the rider of the first respondent's
vehicle has not caused the accident and it was only the claimant, who was the
sole cause for the accident and therefore, closed the complaint as "mistake of
fact".
5. The Tribunal, despite the evidence of R.W.1 and Ex.R1, had
proceeded to mulct the entire responsibility on the driver of the first
respondent. Thereafter, a sum of Rs.2,38,300/- was awarded as compensation.
6. The Insurance Company has filed this appeal being aggrieved by
the fact that the Tribunal below has totally ignored the evidence of R.W.1, as
also Ex.R1 and it is their contention that the contributory negligence ought to
have been fixed on the claimant.
7. Ms.N.B.Surekha, learned counsel appearing for the second
respondent-Insurance Company would submit that the accident had occurred
only on account of the fact that the claimant, who was driving on the extreme
right of the road, had suddenly swerved to the left, as a result of which, the first
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C.M.A.No.73 of 2022
respondent, who was travelling behind, had hit the bike belonging to the
claimant, which caused the accident. She would further submit that, had the
claimant followed the basic road Rules and indicated his intention to turn left,
the first respondent would have been alert and the accident could have been
averted.
8. Per contra, Mr.B.Jawahar, learned counsel appearing for the claimant
would submit that if the first respondent herein had maintained the distance
between the two vehicles, the said accident could not have occurred. He would
also submit that the Tribunal has considered this fact and therefore, rejected the
plea of the second respondent.
9. Heard the learned counsel for the appellant - Insurance Company
and the learned counsel for the first respondent/Caveator.
10. A perusal of the records would show that the F.I.R had been given
by the claimant's son, but however he has not been examined as a witness. In
fact, in the F.I.R, the claimant's son, who was the author of the F.I.R, had stated
that he was travelling in the other vehicle right behind his father. The F.I.R,
however, does not state that the second respondent herein had attempted to
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C.M.A.No.73 of 2022
over-take the claimant's bike, as a result of which, the accident had taken place.
On the contrary, it would say that the claimant has been hit from behind.
Another fact that has to be taken note of is that the F.I.R had been filed with a
delay of two days. The Police have also closed the case as 'mistake of fact',
which indicates that they had not found fault with the rider of the second
respondent's vehicle. However, from perusing the manner in which the
accident has taken place, there appears to be negligence on both parties, more
so, with the second respondent's driver, since had he maintained the distance,
the accident could not have taken place. However, the claimant is equally to
be held responsible, since he has suddenly turned left without any indicator.
Therefore, the negligence has to be apportioned between the two in the ratio
15:85. The compensation ultimately awarded appears to be fair and does not
call for any re-consideration.
11. In the result, the Civil Miscellaneous Appeal is partly allowed
with the claimant being apportioned with 15% negligence. Therefore, the
claimant would be entitled to a sum of Rs.2,02,555/- which is payable by the
appellant-Insurance Company to the claimant. The appellant-Insurance
Company is directed to deposit 85% of the said amount to the credit of
M.C.O.P.No.1125 of 2015 along with interest at the rate of 7.5% per annum
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C.M.A.No.73 of 2022
from the date of claim petition till the date of deposit and costs as awarded by
the Tribunal, less, the amount, if any already deposited, within a period of six
weeks from the date of receipt of a copy of this judgment. The Appellant /
claimant shall forfeit the remaining 15% of the award amount due to his own
contributory negligence. On such deposit being made, the claimant is permitted
to withdraw the award amount, along with accrued interest and costs as
awarded by the Tribunal, less, the amount, if any already withdrawn, by filing
necessary application before the Tribunal. In other respects, the Award of the
Tribunal is hereby confirmed. There shall be no order as to costs in the present
appeal.
21.04.2022
Index:Yes/No
Speaking Order : Yes/No
srn
To
1. The I Additional Subordinate Judge (MACT), Cuddalore District.
2.The Section Officer, V.R.Section, High Court of Madras, Chennai.
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C.M.A.No.73 of 2022
P.T.ASHA.J
srn
C.M.A.No.73 of 2022
21.04.2022
https://www.mhc.tn.gov.in/judis
