Madras High Court
M/S.The Oriental Insurance ... vs Kanagaraj ... 1St on 5 January, 2022
C.M.A.(MD)Nos.168 and 169 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.01.2022
CORAM:
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD)Nos.168 and 169 of 2021
and
C.M.P.(MD)Nos.1421, 1423, 8161 and 8162 of 2021
C.M.A.(MD)No.168 of 2021
M/s.The Oriental Insurance Company Limited,
3607/21, Sathiyamoorthy Road 2nd Floor,
Pudukottai. ... Appellant / 2nd Respondent
Vs.
1.Kanagaraj ... 1st Respondent / Petitioner
2.Devadoss
(2nd respondent remained exparte
before the lower Court) ... 2nd Respondent / 1st respondent
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
Act, 1988, to set aside the decree and judgment passed in M.C.O.P.No. 1435 of
2014, dated 18.11.2019, on the file of the Motor Vehicle Accidents Claims
Tribunal cum Special Sub Judge, Tiruchirappalli.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.168 and 169 of 2021
For appellant : Mr.C.Jawahar Ravindran
For R1 : Mr.D.Karthick Raja
For R2 : No appearance
C.M.A.(MD)No.169 of 2021
M/s.The Oriental Insurance Company Limited,
3607/21, Sathiyamoorthy Road 2nd Floor,
Pudukottai. ... Appellant / 2nd Respondent
Vs.
1.Sathiya Sundaram ... 1st Respondent / Petitioner
2.Devadoss
(2nd respondent remained exparte
before the lower Court) ... 2nd Respondent / 1st respondent
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
Act, 1988, to set aside the decree and judgment passed in M.C.O.P.No. 1431 of
2014, dated 18.11.2019, on the file of the Motor Vehicle Accidents Claims
Tribunal cum Special Sub Judge, Tiruchirappalli.
For appellant : Mr.C.Jawahar Ravindran
For R1 : Mr.D.Karthick Raja
For R2 : No appearance
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.168 and 169 of 2021
COMMON JUDGMENT
These Civil Miscellaneous Appeals are filed by the Insurance
Company, to set aside the decree and judgment passed in M.C.O.P.No. 1431 of
2014 and 1435 of 2014, dated 18.11.2019, on the file of the Motor Vehicle
Accidents Claims Tribunal cum Special Sub Judge, Tiruchirappalli.
2. On 11.01.2013, at about 08.30 p.m., one Sathiyasundaram was
riding the two wheeler (Unregistered two wheeler) along with one Kangaraj,
who is a pillion rider. At that time, a Car bearing Registration No.TN-48-
AV-2194, owned by the second respondent herein and insured with the
appellant came in a rash and negligent manner and dashed against the two
wheeler, as a result of which, both the rider and the pillion rider namely,
Sathiyasundaram and Kangaraj, were sustained injuries.
3. The first respondent herein is the claimant in both the appeals.
The first respondent/claimants were filed M.C.O.P.Nos.1431 and 1435 of 2014
before the Motor Vehicle Accidents Claims Tribunal cum Special Sub Judge,
Tiruchirappalli, claiming compensation.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.168 and 169 of 2021
4. The Tribunal after analysing the entire evidence on record,
awarded a sum of Rs,4,16,188/- in M.C.O.P.No.1431 of 2014 and Rs.71,250/-
in M.C.O.P.No.1435 of 2014 [In M.C.O.P.No.1435 of 2014, Rs.95,000- and
after deducting 25% for negligence on the side of the claimant] together with
interest at the rate of 7.5% per annum, as compensation to the first respondent
herein/claimants. Questioning their liability to pay compensation awarded by
the Tribunal, the appellant/Insurance Company filed these appeals.
5. The learned counsel for the appellant would submit that a persons
was in a drunken stage, no relief is granted to the claimant, but, the lower Court
has given contributory negligence as 25% is perverse. The lower Court failed
to note that Section 129 of the Motor Vehicles Act, 1988, provides for wearing
of protective head gear by those riding two wheelers. The learned counsel,
therefore, would vehemently contend that, if the injured had worn the helmet,
he ought not have injured. Therefore, he would submit that the injured only
due to his negligence and the appellant/Insurance Company is not liable to pay
any compensation to the first respondent/claimant.
6. The learned counsel for the claimants in both the appeals would
submit that the Tribunal after properly analysing the materials on record, fixed
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.168 and 169 of 2021
the liability on the appellant/Insurance Company and prayed for dismissal of
the appeals.
7. It is seen from the records that both the claimants are injured, who
were sustained injuries, in a road accident. On 11.01.2013, at about 08.30
p.m., one Sathiyasundaram was riding the two wheeler (Unregistered two
wheeler) along with one Kangaraj, who is a pillion rider. At that time, a Car
bearing Registration No.TN-48-AV-2194, owned by the second respondent
herein and insured with the appellant / Insurance Company came in a rash and
negligent manner and dashed against the two wheeler, as a result of which, both
the rider and the pillion rider namely, Sathiyasundaram and Kangaraj, were
sustained injuries. The First Information Report was registered against the rider
of the two wheeler (Sathiyasundaram) and charge sheet was also filed. The
rider of the two wheeler has admitted the offence and has paid fine of
Rs.2,000/- before the learned Magistrate, as per Ex.P11 (Accident Register), the
rider of the two wheeler consumed alcohol. So, the Tribunal has fixed 25%
liability against the rider of the two wheeler and also fixed 75% liability on the
driver of the car.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.168 and 169 of 2021
8.As per the case of the appellant, the rider of the two wheeler
suddenly crossed the road from East to West. Even though, the driver of the car
try to avoid the dashing turned the car, but, dashed with the two wheeler. All
the available criminal court records are against the rider of the two wheeler
(Sathiyasundaram). As per the evidence of P.W.4 / eye witness, the car came in
a rash and negligent manner and dashed against the two wheeler. But, the
Motor Vehicle Report was not filed, for the two wheeler. As per the Motor
Vehicle Report for the car, a front side of the car damaged. The Tribunal has
also discussed that all the evidences are against the rider of the two wheeler
(Sathiyasundaram) and as per the Accident Register / Ex.P11, the rider of the
two wheeler was under the control of alcohol. But, considering the evidence of
P.W.4, the Tribunal has fixed the liability on the car driver also. Considering all
the evidences, both the drivers are responsible for the accident. All the records
are even against the rider of the two wheeler, the evidence eye witness / P.W.4,
is against the driver of the car. It is seen from Ex.P6 / Rough Sketch that the
Tribunal came to the conclusion that the accident was occurred on the right side
of the road, but, there is no evidence to show that the two wheeler was damaged
on the back side or rear side.
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C.M.A.(MD)Nos.168 and 169 of 2021
9.Considering all these aspects, this Court has come to the conclusion
that, this Court has fixed 50% negligence on the rider of the two wheeler and
the driver of the car. There is no objection for quantum. The award granted by
the Tribunal is confirmed and the drivers are liable for 50% award amount. The
appellant / Insurance Company is directed to pay 50 % of the award amount
granted by the Tribunal in each M.C.O.P..
10. These Civil Miscellaneous Appeals are partly allowed and the
award passed by the Tribunal is modified, the appellant / Insurance Company
is directed to deposit 50% of the award amount by the Tribunal in both the
M.C.O.P.cases along with 7.5% interest and costs within a period of six weeks
from the date of receipt of copy of the judgment, if not already deposited. On
such deposit being made, the claimant in both the appeals is permitted to with
draw the award amount. The appellant / Insurance Company is permitted to
withdraw the excess award amount, if any, after following due process of law.
The Claimants in both the appeals are not entitled for interest for the default
period, if there is any default. No costs.Consequently, connected Miscellaneous
Petitions are closed.
Index : Yes / No 05.01.2022
Internet : Yes / No
Ls
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.168 and 169 of 2021
S.ANANTHI.,J.
Ls
To
1.The Motor Accident Claims Tribunal (Fast Track Court-I)-
Additional District Judge, Tiruchirapalli.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
C.M.A.(MD)Nos.168 and 169 of 2021
05.01.2022
https://www.mhc.tn.gov.in/judis
