Bajaj Allianz General Insurance ... vs K.Jeyaram
2023 Latest Caselaw 3888 Mad

                                                                                    C.M.A. (MD)No.1146 of 2022


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED : 06.04.2023

                                                         CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                                 C.M.A.(MD)No.1146 of 2022
                                                            and
                                                 C.M.P.(MD)No.11754 of 2022

                Bajaj Allianz General Insurance Company Limited.,
                Represented through its Branch Manager,
                GE Piaza, Air Port Road,
                Yerwada, Pune-411 006.                         ...Appellant/3rd Respondent

                                                           Vs.

                1.K.Jeyaram
                2.J.Alagumayil                                   ...Respondents1 & 2/Petitioners
                3.S.Kalimuthu
                4.S.Ramkumar                                     ...Respondents3 & 4/Respondents 1 & 2


                PRAYER: This Civil Miscellaneous Appeal is filed under Section 173 of the
                Motor Vehicles Act, to set aside the judgment and decree dated 01.02.2022 passed
                in M.C.O.P.No.102 of 2014 on the file of the Motor Accident Claims
                Tribunal/Subordinate Court, Sivakasi.


                                        For Appellant     : Mr.V.Sakthivel
                                        For R1 & R2       : Mr.M.Ashok Kumar
                                        For R4            : No Appearance
                                        For R3            : Unclaimed

                1/7
https://www.mhc.tn.gov.in/judis
                                                                                       C.M.A. (MD)No.1146 of 2022


                                                          JUDGMENT

Challenging the quantum of compensation awarded by the Motor

Accident Claims Tribunal/Subordinate Court, Sivakasi in M.C.O.P.No.102 of

2014, dated 01.02.2022 the present Civil Miscellaneous Appeal has been filed.

2.For the sake of convenience, the parties herein are referred to as per

their rank before the Trial Court.

3.The brief facts, leading to the filing of the claim petition, are as

follows:-

(i)On 24.02.2009 at about 10.30 p.m., the deceased was riding his two

wheeler proceeding from South to North in Tiruthangal to Virudhunagar Road

with his friend as pillion rider. The first respondent parked the lorry bearing

Registration No.TN-28-AA-2005 without any indication of parking signal. As a

result, the two wheeler hit the lorry from the behind and the deceased succumbed

to injuries.

(ii)the deceased was aged about 24 years at the time of the accident and

he was earning a sum of Rs.10,000/- per month as a Lorry Booking Agent. The

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1146 of 2022

petitioners are the parents of the deceased. Hence, the claim petition was filed

seeking compensation.

(iii) the first and second respondents filed counter stating that the

accident was occurred due to the rash and negligent driving of the deceased. The

first respondent parked the lorry adhering to traffic rules with proper signal.

(iv) the third respondent also took a stand that only the deceased drove

his motorcycle in a rash and negligent manner and hit against the lorry which was

parked on the left side of the road with proper signal.

3.Before the tribunal, on the side of the claimants P.W.1 and P.W.2 were

examined and Ex.P1 to Ex.P11 were marked. On the side of the respondents

R.W.1 to R.W.3 were examined and Ex.R1 was marked.

4.The tribunal after considering the entire oral and documentary

evidence on record came to the conclusion that the lorry was parked in the left side

of the road by the Sales Tax Officials with proper signal. Further, considering the

evidence of R.W.1 to R.W.3, the Tribunal had found that the rider of the

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1146 of 2022

motorcycle drove the vehicle in a rash and negligent manner and dashed against

the lorry from the behind. The deceased did not have any valid license and did n

not wear helmet at the time of the accident and awarded the compensation as

follows:

                            S.No.                       Head                  Amount
                                  1.   Loss of dependency               Rs.15,12,000/-
                                  2.   Loss of estate                   Rs.   16,500/-
                                  3.   Funeral Expenses                 Rs.   16,500/-
                                  4.   Loss of love and affection       Rs.   80,000/-
                                  5.   Transportation expenses          Rs.   10,000/-
                                                        Total           Rs.16,35,000/-

The total compensation amount is Rs.16,35,000/-. The tribunal had fixed 70%

contributory negligence on the part of the deceased and 30% negligence on the

part of the first respondent considering the entire evidence on record and awarded

a sum of Rs.6,54,000/- to the claimants as compensation. Challenging the same,

the present Civil Miscellaneous Appeal had been filed by the Insurance Company.

5.The learned counsel for the appellant contended that even 30% of

contributory negligence ought not to have been apportioned on the Insurance

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1146 of 2022

company by the Tribunal. The lorry was parked only by the Sales Tax Officials

with proper signals.

6.I have heard the learned counsel appearing on either side and also

perused the materials available on record.

7.In view of the above submissions, now the point arises for

consideration in this appeal is:

Whether the tribunal was right in fixing 30% negligence on the part of

the Insurance Company?

8.On perusal of entire evidence available on record, this Court is of the

view that the Tribunal had infact rightly assessed the contributory negligence on

the part of the driver of the lorry. The driver of the lorry or the cleaner ought to

have put some blockades or signals to avoid any other vehicle coming near to the

lorry. But the same had not been done. Therefore, this Court is of the view that

the apportionment of Tribunal by fixing 30% contributory negligence on the part

of the first respondent cannot be found fault. It is to be noted that the negligence

apportioned on the part of the deceased had not been challenged by the claimants.

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1146 of 2022

9.In such view of the matter, I do not find any merits in this appeal.

Accordingly, this Civil Miscellaneous Appeal is dismissed.

10.At this juncture, the learned counsel for the appellant Insurance

Company submitted that the entire award amount had been deposited. The

claimants are permitted to withdraw the award amount, less the amount if any

already withdrawn, as apportioned by the Tribunal by making necessary

application before the Tribunal. No costs. Consequently, connected miscellaneous

petition is closed.

06.04.2023 NCC : Yes / No Index : Yes/No Internet : Yes/No ta

To

1.The Motor Accident Claims Tribunal Special Sub Court, Sivakasi.

2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis C.M.A. (MD)No.1146 of 2022

N.SATHISH KUMAR, J.

ta

C.M.A.(MD)No.1146 of 2022

06.04.2023

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