Johnpaul @ Rajendren vs Sumalatha
2022 Latest Caselaw 1053 Mad

                                                                          CMA(MD)No.771 of 2021


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 24.01.2022

                                                   CORAM:

                                  THE HONOURABLE MRS.JUSTICE S.ANANTHI

                                            CMA(MD)No.771 of 2021


                     Johnpaul @ Rajendren                       ... Appellant/Claimant


                                                          Vs.


                     1.Sumalatha

                     2.The Managing Director,
                       Cholamandalam M/S General Insurance Co.Ltd.,
                       Dare House, 2nd Floor,
                       No.2, NSC Bose Road,
                       Chennai – 1.                         ... Respondents/Respondents


                     PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act, 1988, to enhance the amount in judgment and
                     decree, dated 13.11.2019 made in M.C.O.P.No.16 of 2015 on the file of
                     the Motor Accidents Claims Tribunal / Additional Sub Judge, Pudukottai.


                                   For Appellant     :Mr.N.Kamesh
                                   For R1            :No Appearance
                                   For R2            :Ms.K.R.Shivashankari




https://www.mhc.tn.gov.in/judis
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                                                                                     CMA(MD)No.771 of 2021


                                                        JUDGMENT

The Civil Miscellaneous Appeal has been filed to enhance the

compensation awarded in M.C.O.P.No.16 of 2015, dated 13.11.2019 on

the file of the Motor Accident Claims Tribunal / Additional Sub Judge,

Pudukottai.

2. The case of the claimant, in nutshell, is as follows:

On 20.11.2014 at about 3.30 p.m., while the petitioner was

taking one Arockiasamy to Government Hospital with Kanikaidass in his

Bajaj Discover bike, bearing Registration No.TN-55-R-1886 from north

to south on the left side of the Trichy - Pudkkotai Road, when the

petitioner came near Thirukokarnam Malaikaruppar Koveil, the first

respondent driver drove his TATA ACE vehicle bearing Registration

No.TN-55-AD-0019 in a negligent and speedy manner and colluded with

the petitioner's vehicle. Due to that accident, the petitioner sustained

injuries and was taken to the Government Hospital, Pudukkottai and then

for better treatment, he was taken to Tanjore Medical College, Hospital

and admitted as inpatient from 21.11.2014 to 25.12.2014.

3.The claimant has filed the claim petition in M.C.O.P.No.16 of

2015 on the file of the Motor Accidents Claims Tribunal/Additional https://www.mhc.tn.gov.in/judis

CMA(MD)No.771 of 2021

Subordinate Judge, Pudukkottai, seeking compensation of Rs.15,00,000/-

4.Before the Tribunal, on the side of the claimant, three witnesses

were examined as P.W.1 to P.W.3 and nineteen documents were marked

as Exs.P.1 to P.19. On the side of the respondent, one witness was

examined as R.W.1 and one document was marked as Ex.R1 and one

Court document was marked as Ex.C1.

5.The Tribunal, after considering the pleadings, oral and

documentary evidences and the arguments of the counsel for the claimant

and the respondents and also on appreciating the evidences on record,

held that the accident occurred due to the rash and negligent driving of

the both the claimant and the first respondent and however, directed the

second respondent/Insurance Company Ltd., to pay a sum of

Rs.5,73,269/- (50% of compensation award) as compensation. Aggrieved

over the orders passed by the Tribunal, the claimant has filed the present

appeal under Section 173 of the Motor Vehicles Act, 1988.

6.Heard Mr.N.Kamesh, learned counsel appearing for the appellant

and Ms.K.R.Shiva Shankari, learned counsel appearing for the second

respondent. No representation on behalf of the first respondent. https://www.mhc.tn.gov.in/judis

CMA(MD)No.771 of 2021

7. The learned counsel appearing for the appellant / claimant

contended that the accident has occurred due to the rash and negligent

driving of the first respondent's driver. But the Tribunal fixed the

negligence on the part of the driver of the TATA Ace vehicle and the rider

of the motorcycle in the ratio 50:50, though no evidence was adduced on

the side of the respondents to show that the rider of the motorcycle was

also rash and negligent in riding his vehicle.

8.The learned counsel appearing for the Insurance Company

contended that the Tribunal based on the evidence on record, had rightly

concluded that the rider of the motorcycle was also responsible for the

accident and fixed the contributory negligence to the extent of 50% on

the rider of the motorcycle. She therefore prayed for dismissal of the

appeal.

9.On perusal of the orders passed by the Tribunal would show that

the Tribunal had fixed the contributory negligence on the part of the rider

of the motorcycle to the extent of 50%, on three grounds. At the time of

accident, the claimant was not in possession of a valid driving licence

and he was not wearing any helmet and the two wheeler was ridden with

two pillion riders. As per evidence of Ex.P1/FIR copy and Ex.P2/Final https://www.mhc.tn.gov.in/judis

CMA(MD)No.771 of 2021

report, it is clear that the accident was caused by the first respondent

TATA Ace vehicle driver. So the driver of the TATA ACE vehicle

contributed much more than the rider of bike. Therefore, negligence is

fixed at 70% on the driver of the TATA ACE vehicle bearing Registration

No.TN-55-AD-0019 and 30% on the rider of the two wheeler bearing

Registration No.TN-55-R-1886. As far as the quantum is concerned, it is

just and reasonable.

10. In the result,

(i) The Civil Miscellaneous Appeal is partly allowed. The

quantum of compensation awarded by the Tribunal is upheld.

(ii) The orders passed by the Tribunal with regard to the liability is

modified and the negligence on the part of the driver of the TATA ACE

vehicle bearing Registration No.TN-55-AD-0019 and the rider of the two

wheeler bearing Registration No.TN-55-R-1886 is fixed in the ratio

70:30.

(iii) Therefore, the second respondent/Insurance Company is liable

to pay 70% of the compensation amount awarded by the Tribunal, less

the amount already deposited, if any, together with interest at the rate of

7.5% per annum from the date of claim petition till the date of deposit to

the credit of MCOP.No.16 of 2015 on the file of the Motor Accident https://www.mhc.tn.gov.in/judis

CMA(MD)No.771 of 2021

Claims Tribunal /Additional Sub Judge, Pudukkottai, within a period of

four weeks from the date of receipt of a copy of this order.

(iv) The appellant/claimant is permitted to withdraw 70% of

compensation awarded by the Tribunal with accrued interest and cost,

after following due process of law. No costs.

24.01.2022 Index :Yes/No Internet:Yes/No vsd

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 Sub Judge, Pudukottai.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

CMA(MD)No.771 of 2021

S.ANANTHI, J.

vsd

CMA(MD)No.771 of 2021

24.01.2022

https://www.mhc.tn.gov.in/judis