Madras High Court
The Divisional Manager vs Rajeshkumar on 12 June, 2023
CMA.No.1495 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.06.2023
CORAM
THE HON'BLE MRS. JUSTICE J. NISHA BANU
AND
THE HON'BLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY
C.M.A.No. 1495 of 2022
The Divisional Manager,
The Oriental Insurance Co. Ltd.,
No. 179, S.V. Complex, II Floor,
Eswarankoil Street,
Pondicherry – 605 001. ... 2nd Respondent/Appellant
Vs.
1. Rajeshkumar
2. Manickam. ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act against the award dated 06.01.2022 made in M.C.O.P. No. 1091
of 2018 on the file of The Motor Accidents Claims Tribunal, Principal Sub
Judge, Puducherry.
For Petitioner/Appellant : Mr. S. Arun Kumar
For Respondents : Mr. D. Senthil Kumar
JUDGMENT
The appeal is directed against the fair and decreetal order in
M.C.O.P.No.1091 of 2019, dated 06.01.2022, thereby awarding a total
compensation of a sum of Rs.22,69,300/- to the 1st respondent/claimant in
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respect of the claim arising out of injury. Aggrieved by the same, the present
Appeal is filed by the Insurance Company.
2. Mr.S.Arun Kumar, learned counsel for the appellant would contend
that firstly, in this case, the nature of accident is that the claimant being the
following vehicle came in a high speed and hit against the vehicle and the
impact was heavy. Therefore, the Tribunal ought not to have apportioned the
contributory negligence at 50% as negligence is more on the part of the
claimant himself.
3. Secondly, he would submit that the Tribunal's award is on the higher
side. In the absence of any other proof, based on the driving licence of the
claimant, as he was licenced to drive heavy vehicles, a sum of Rs.18,000/- is
fixed as monthly income which is on the higher side and fixing a sum of
Rs.15,000/- would have been appropriate. Therefore, the award of the
Tribunal requires interference to that extent.
4. Per contra, Mr.D.Senthilkumar, learned counsel for the first
respondent/claimant would submit that in this case, the lorry which was
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proceeding in front of the claimant's vehicle suddenly stopped and that is only
the proximate and appropriate cause for the accident. Fixation of 50% of the
contributory negligence on the part of the claimant itself is on the higher side.
As far as the income is concerned, he pointed out to the judgment of the
Tribunal and submitted that based on the earlier rulings of this Court, after due
application of mind, the Tribunal has fixed the monthly income. Therefore, the
award does not warrant interference by this Court.
5. This Court has considered the rival submissions made on either
side and perused the materials available on record.
6. The point that arises for consideration in this appeal is that
(i).whether or not the Tribunal erred in fixing 50% as contributory
negligence on the part of the claimant; and
(ii). whether or not, the compensation awarded by the Tribunal is on the
higher side?
7. On the first point, upon perusing the FIR, it is seen that the
manner in which both the vehicles were proceeding, we feel that when the
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primary and major cause of the accident was on the offending vehicle which
was proceeding in front of the claimant's vehicle resulted in the accident, the
contributory negligence comes in the context of where the claimant could have
avoided the accident by averting collision. Therefore, we feel that in the facts
and circumstances of the case, taking into account the nature of vehicles
involved, the place of accident and the evidence let in on behalf of the claimant,
especially when no contra evidence has been let in on behalf of the Insurance
Company by examining the driver of the vehicle which is proceeding first,
fixing of 50% contributory negligence itself is on the higher side. In that view
of the matter, even if the monthly income which is taken as Rs.18,000/- is taken
marginally on the higher side, that would set off the entire award and on the
whole, the award of the Tribunal is just reasonable and appropriate. In such
view of the matter, there is no ground to interfere the impugned award.
Accordingly, the Civil Miscellaneous Petition is dismissed and a sum of
Rs.22,69,300/- together with interest and costs, awarded by the Tribunal as
compensation to the 1st respondent/claimant is confirmed.
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8. It is represented by the learned counsel for the appellant that
50% of the award amount has already been deposited to the credit of
M.C.O.P.No.1091 of 2019.
9. The appellant-Insurance Company is directed to deposit the
compensation awarded by the Tribunal, along with interest and costs, less the
amount already deposited, within a period of six weeks from the date of receipt
of a copy of this Order, to the credit of M.C.O.P.No.1091 of 2019.
i. On such deposit, the 1st respondent/claimant is permitted to withdraw the
award amount along with interest and costs, after adjusting the amount,
if any, already withdrawn, by filling necessary applications before the
Tribunal.
ii. No costs. Consequently connected miscellaneous petition is closed.
(J.N.B,J.) (D.B.C, J.)
12.06.2023
Index:Yes/No
msv
Index:Yes/No
Internet:Yes/No
Speaking order: Non-speaking order
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CMA.No.1495 of 2022
J.NISHA BANU, J.
and
D. BHARATHA CHAKRAVARTHY, J.
msv
C.M.A.No. 1495 of 2022
12.06.2023
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