Madras High Court
The Branch Manager vs Thaasikani ...1St on 28 January, 2022
C.M.A.(MD).No.922 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.01.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD).No.922 of 2017
and
C.M.P(MD)No.9736 of 2017
The Branch Manager,
ICICI Lombard General Insurance
Company Ltd.,
Madurai.
...Appellant/4th Respondent
Vs.
1.Thaasikani ...1st Respondent/Petitioner
2.Packiyaraj
3.The Branch Manager,
Branch Office,
National Insurance Company Ltd.,
175A, Great Garden Road,
Thoothukdi – 628 001.
4.Kasi ...Respondent Nos.2 to 4/
Respondent Nos.1 to 3
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, to set aside the judgment and decree, dated 24.03.2016 in
MCOP.No.129 of 2010 on the file of the Motor Accident Claims Tribunal
cum Sub Court, Vallioor and allow the above Civil Miscellaneous Appeal.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.922 of 2017
For Appellant :Mr.K.K.Ramakrishnan
For R1 :Mr.S.Muthumalai Raja
For R2 :No Appearance
For R3 :Mr.S.Srinivasa Ragavan
For R4 :Mr.M.Gururaj
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside the
judgment and decree, dated 24.03.2016 in M.C.O.P.No.129 of 2010 on the
file of the Motor Accident Claims Tribunal cum Sub Court, Vallioor.
2.It is a case of accident, which took place on 28.08.2009, at about
5.30 p.m. while the claimant drove the van bearing Registration No.TN-69-
M-2337 belonging to the firs respondent, when he came near Manaloore
Vaigai Vinayagar Kovil, a lorry bearing Registration No.TN-63-C-8075
driven by its driver in front of the petitioner's van applied sudden break. Due
to which, the petitioner dashed against the back side of the lorry and the
petitioner sustained multiple injuries all over his bod and fracture on his right
leg. Immediately the petitioner was taken to the Preethi Hospital, Madurai
and admitted as inpatient from 28.08.2009 to 22.09.2009.
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C.M.A.(MD).No.922 of 2017
3.The claimant has filed a petition in M.C.O.P.No.129 of 2010 on the
file of the Motor Accident Claims Tribunal cum Sub Court, Vallioor, seeking
compensation of Rs.7,00,000/-.
4.Before the Tribunal, on the side of the claimant, two witnesses were
examined as P.W.1 and P.W.2 and eight documents were marked as Exs.P.1 to
P.8. On the side of the respondents, one witness was examined as P.W.1 and
one document was marked as Ex.R1
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 only, due to the rash and negligent driving of the driver of
the third respondent, directed the fourth respondent to pay compensation of
Rs.3,83,300/-. Against which, the appellant/4th respondent has filed the
present appeal to set aside the award of compensation passed by the Tribunal.
6.Heard the learned counsel for the appellant and perused the materials
available on record.
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C.M.A.(MD).No.922 of 2017
7.The learned counsel appearing for the appellant contended that only
due to the rash and negligent driving of the claimant, he dashed with the back
side of the appellant insured vehicle. He further contended that F.I.R. was
registered against the claimant and charge sheet was also filed. Further, from
the evidence of RW1, it is clear that the claimant also pleaded guilty before
the Criminal Court and sustained the conviction for his rash and negligent
driving. So the driver is not responsible for the accident. Hence, the
appellant/Insurance Company is not responsible for paying compensation.
8.A perusal of records would show that FIR was registered against the
claimant, which was marked as Ex.P1 and after investigation, charge sheet
has also filed and the same was also marked as Ex.P3. One Manokar, who
was examined as RW1, has stated in his evidence that the claimant pleaded
guilty before the Magistrate and no document was filed in support of the
same. Based on the information given by the lorry driver/4th respondent, FIR
(Ex.P1), was registered, in which, there was no averment to show that the
claimant drove the van in a rash and negligent manner.
9.As per judgment of Hon'ble Supreme Court of India in the case of
Nishan Singh and Others Vs. Oriental Insurance Company Ltd., and others,
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C.M.A.(MD).No.922 of 2017
reported in (2018) 6 Supreme Court Cases 765, wherein, in paragraph No.
12 held as follows:
''12.............
''23.Distance from vehicles in front. -
The driver of a motor vehicle moving behind
another vehicle shall keep at a sufficient distance
from that other vehicle to avoid collision if the
vehicle in front should suddenly slow down or
stop.''
The expression ''sufficient distance'' has not been
defined in the Regulations or elsewhere. The
thumb rule of sufficient distance is at least a safe
distance of two to three seconds gap in ideal
conditions to avert collision and to allow the
following driver time to respond. The distance of
10-15 ft between the truck and Maruthi car was
certainly not a safe distance for which the driver
of the Maruthi car must take the blame. It must
necessarily follow that the finding on the issue
under consideration ought to be against the
claimants''.
10.Considering the averments set out in the FIR and charge sheet, the
claimant might have avoided the accident by following sufficient distance.
Therefore, negligence is fixed at 70% on the driver of the lorry bearing
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C.M.A.(MD).No.922 of 2017
Registration No.TN-63-C-8075 and 30% of the driver of van bearing
Registration No.TN-69-M-2337. As far as the quantum is concerned, it is just
and reasonable.
11. 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 lorry bearing
Registration No.TN-63-C-8075 and the driver of the van bearing Registration
No.TN-69-M-2337 in the ratio of 70:30.
(iii) Therefore, the appellant/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.129 of 2010 on the file of the Motor Accident Claims Tribunal
cum Sub Court, Vallioor, within a period of six weeks from the date of
receipt of a copy of this order.
(iv) The first respondent/claimant is permitted to withdraw 70% of
compensation awarded by the Tribunal with accrued interest and cost, after
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C.M.A.(MD).No.922 of 2017
following due process of law. No costs. Consequently connected
miscellaneous petition is closed.
28.01.2022
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 Accident Claims Tribunal cum Sub Court,
Vallioor
2. The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.922 of 2017
S.ANANTHI, J.
vsd
C.M.A.(MD).No.922 of 2017
and
C.M.P(MD)No.9736 of 2017
28.01.2022
https://www.mhc.tn.gov.in/judis
