K.M.Sirajudeen (Died) vs M.Charles
2023 Latest Caselaw 5750 Mad

                                                   C.M.A.No.1374 of 2017



           IN THE HIGH COURT OF JUDICATURE AT MADRAS

                              DATED : 08.06.2023

                                   CORAM

          THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN

                           C.M.A.No.1374 of 2017

K.M.Sirajudeen (died)

2.S.Rahmath
3.A.Mubeena Begam
4.Mohammed Ali                                      ... Appellants

[Sole appellant died. Appellants 2 to
4 brought on record as Lrs of the
deceased sole appellant vide Court
order dated 27.02.2023 made in
C.M.P.Nos.3367, 3371 & 3372 of
2023 in C.M.A.No.1374 of 2017]
                                        Vs.

1.M.Charles

2.The Additional DIGP,
  CRPF Pujare,
  Haryana.

3.The Secretary,
  Ministry of Home Affairs,
  Government of India,
  North Block,
  New Delhi – 110.                                  ... Respondents


1/9
                                                            C.M.A.No.1374 of 2017

Prayer: Appeal filed under Section 173 of Motor Vehicles Act, 1988 against

Judgment and Decree dated 05.10.2016 passed in M.C.O.P.No.1815 of 2013

on the file of the Motor Accident Claim Tribunal (Special Subordinate Judge),

Coimbatore, and enhance the award amount.


            For Appellants          : Mr.A.Tamilarasan

            For Respondents
                  For R1            : Mr.R.Poovalingam

                  For R2            : Mr.C.Samivel
                                      Senior Panel Central Govt. Standing
                                      Counsel

                  For R3            : Mr.N.Rajan
                                      Senior Panel Central Govt. Standing
                                      Counsel




                              JUDGMENT

This Civil Miscellaneous Appeal arises against the award passed by the

Motor Accidents Claims Tribunal (Special Subordinate Judge), Coimbatore, in

M.C.O.P.No.1815 of 2013 on 05.10.2016.

C.M.A.No.1374 of 2017

2. It is the case of the appellant that on 29.03.2013 at about 20.00 hours,

the petitioner herein after closing down his office and when riding his Mahindra

Duo two wheeler bearing Registration No. TN-66-F-6118 along with one

R.Navinkumar as pillion rider proceeding in the Pollachi main road from north

to south and stopped the vehicle on seeing red light signal in front of B-12

Police Station, at the time the 1st respondent driving the offending vehicle LMV

GV (Swaraj Mazda) bearing Registration No. HR-68-1543 came in the same

direction from north to south in a rash and negligent manner with over speed

and dashed against the petitioner's vehicle and caused an accident. As a result of

the accident, the petitioner sustained multiple grievous injuries and took

treatment as in-patient from 29.03.2013 to 30.03.2013. Hence, the petitioner

has filed a petition before the Tribunal claiming a sum of Rs.5,00,000/- as

compensation from the respondents together with interests and costs for the

injuries sustained by him.

3. Before the Tribunal, on the side of the claimant, P.W.1 and P.W.2

were examined and Ex.P1 to Ex.P10 were marked and on the side of the

respondents R.W.1 was examined and Ex.R1 was marked.

4. On perusal of oral and documentary evidence the Tribunal has fixed

C.M.A.No.1374 of 2017

the negligence on the part of the claim petitioner and dismissed the claim

petition filed by the claim petitioner.

5. Learned counsel for the appellant submitted that the Tribunal has

miserably failed to consider all the documents filed by the appellant and

dismissed the petition. He further submitted that the Tribunal failed to note that

from the evidence of P.W.1 and Ex.P1 (FIR copy), which has been proved that

the 1st respondent came behind in a rash and negligent manner and dashed

behind the vehicle of the appellant and due to the said accident, the appellant

sustained grievous injuries. Therefore, the Tribunal ought to have fixed

negligence on the part of the 1st respondent. The Tribunal failed to note that the

greater responsibility is on the 1st respondent as he was attempting to cross the

traffic signal with over speed while the appellant stopped his vehicle in signal.

The Tribunal overlooked the facts that if really the van dashed against the rear

side of the two wheeler then the pillion rider too would have sustained injuries,

but the pillion rider had not sustained any injury and instead of the appellant,

who rode the vehicle, sustained grievous injuries, without any injuries being

caused to the pillion rider. The Tribunal overlooked that the evidence of R.W.1

and Ex.P.3 and Ex.P.4 reports that means that the appellant himself is

C.M.A.No.1374 of 2017

responsible for the said accident. The Tribunal failed to consider that due to the

accident the injured has sustained disability to an extent of 31% for the injuries

namely, Fracture of Right Distal radius with fracture of Right Ulna Lower 1/3rd,

which has been supported by the evidence of P.W.2-Doctor and Exhibit P.10.

Therefore, the order passed by the Tribunal has to be set aside.

6. Respondents in the counter affidavit filed before the Tribunal

contended that the 1st respondent is the driver of Swaraj Mazda vehicle involved

in the accident and the 2nd respondent is the owner in whose name the RC was

issued and the 3rd respondent is the Chief of the Department in the chain of

Command. These respondents deny the age, avocation, income and earning

prospects of the petitioner. The petitioner is aged person who cannot handle a

sturdy scooter in general and during night hours in particular. The accident

occurred due to the negligence and carelessness of the petitioner who lost his

control while he was riding his vehicle and he was the one who hit the

respondent's vehicle. The respondents further contended that at the time of

accident the petitioner was riding his two wheeler along with a pillion rider and

this was admitted by the petitioner in his petition, but it is not understood that

how the rider alone ws reportedly injured leaving the pillion rider if what he

C.M.A.No.1374 of 2017

averred that the respondent's vehicle hit his scooter from behind. In that case,

the pillion rider would have been the first person to get hit and get injured.

7. The respondent further contended that since the two wheeler hit the

CRPF vehicle as a result of which the rider who was riding and in front

sustained injuries. So from this it is evident that the petitioner was the one who

hit this respondent's vehicle and also the photographs of the two wheeler was

damaged and there was no damage on the rear side of the two wheeler. It is

clearly evident that this respondent's vehicle has not hit the two wheeler. But on

the other hand, the petitioner was the one who hit this respondent's vehicle by

losing his control. Thus the petitioner himself invited injuries to himself and

neither the respondents nor their vehicle contributed to the accident in question

in any manner whatsoever. Therefore, the accident occurred only because of the

careless and negligent riding of the petitioner who hit the respondent's vehicle

by losing his control. Hence, this appeal is to be dismissed.

8. Heard the learned counsel for the appellant and the learned counsel for

the respondent and perused the materials available on record.

C.M.A.No.1374 of 2017

9. It is seen from the records that the appellant has failed to produce

relevant documents such as admission slip or wound certificate issued by the

K.G.Hospital, Coimbatore, where the injured had taken treatment initially.

Further, the pillion rider one R.Naveen Kumar has not been examined by the

Trial Court. Therefore, this Court is inclined to grant an opportunity to the

appellant to file those documents related to the accident and directed to examine

the said R.Navinkumar, pillion rider.

10. In view of the above, this Court is of the view that it would be

appropriate to remand the matter back to the Motor Accident Claims Tribunal

cum Special Subordinate Judge, Coimbatore, for reconsideration.

11. Accordingly, the order passed by the Motor Accident Claims Tribunal

(Special Subordinate Judge), Coimbatore, in M.C.O.P.No.1815 of 2013 dated

05.10.2016 is set aside and the matter is remanded back to the Court below for

fresh consideration.

12. Accordingly, this Civil Miscellaneous Appeal is disposed of. No costs.

C.M.A.No.1374 of 2017

08.06.2023 Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order ata

To

The Presiding Officer, The Motor Accident Claim Tribunal, Special Subordinate Judge, Coimbatore.

A.A.NAKKIRAN.J,

ata

C.M.A.No.1374 of 2017

C.M.A.No.1374 of 2017

08.06.2023