Madras High Court
The New India Assurance Company ... vs M.Mayakannan @ Kannan ... 1St on 15 June, 2023
C.M.A.(MD).No.1559 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1559 of 2013
and
M.P(MD) No.1 of 2013
The New India Assurance Company Limited,
Munnar
Kerala State. ... Appellant/2nd Respondent
-vs-
1. M.Mayakannan @ Kannan ... 1st Respondent / Petitioner
2. T.Dennison ... 2nd Respondent/
1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and award made in M.C.O.P.No.200
of 2012, dated 10.04.2013, on the file of the Motor Accidents Claims
Tribunal/ I Additional District Judge, Thoothukudi.
For Appellant : Mr.D.Sivaraman
For Respondents : Mr.S.Sivathilagar for R1
: No appearance – for R2
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C.M.A.(MD).No.1559 of 2013
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the Insurance
Company challenging the award passed by the Motor Accidents Claims
Tribunal/I Additional District Judge, Thoothukudi, made in M.C.O.P.No.200
of 2012 primarily on the ground of negligence.
2. The injured claimant had contended that when he was a pillion rider
in a two wheeler which was driven by one Balasubramanian, the Ambassador
Car belonging to the first respondent insured with the second respondent
came from the opposite direction and dashed against the two wheeler, in
which, the rider has passed away and the legal heirs have filed M.C.O.P.No.
58 of 2012 and the injured pillion rider has filed M.C.O.P.No.200 of 2012.
3. The Tribunal arrived at a finding that the driver of the car was solely
responsible for the accident. The Tribunal has awarded a sum of Rs.2,70,427/-
(Rupees Two Lakhs Seventy Thousand Four Hundred and Twenty Seven
only) as compensation for the injured claimant. Challenging the same, the
present appeal has been filed by the Insurance Company.
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C.M.A.(MD).No.1559 of 2013
4. The primary contention of the learned counsel for the appellant is
that when there was negligence on the part of the rider of the two wheeler as
well as the driver of the Car, the liability should have been properly
apportioned and therefore, the award of the Tribunal is not sustainable
mulcting the entire liability upon the Insurance Company of the Car.
5. It is brought to the notice of this Court that challenging the award
passed in M.C.O.P.No.58 of 2012, the Insurance Company had filed C.M.A.
(MD) No.1578 of 2013 raising the same ground of negligence. In paragraph
No.3 of the order, dated 12.12.2017, this Court was pleased to apportion the
negligence at 80% on the driver of the Car and 20% on the rider of the two
wheeler. Therefore, this Court is not in a position to reconsider the said issue
relating to negligence.
6. A perusal of the quantum of award clearly indicates that more than
50% of the award is towards medical expenses and therefore, this Court does
not find any reason to interfere with the quantum of award.
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C.M.A.(MD).No.1559 of 2013
7. In view of the order passed by this Court in C.M.A(MD) No.1578 of
2013, dated 12.12.2017, the appellant herein has to satisfy the entire award
and the appellant would be entitled to recover the 20% of the award amount
from the owner of the two wheeler, in view of the judgment of the Hon'ble
Supreme Court reported in 2015 9 SCC 273 (Khenyei vs- New India
Assurance Company Limited and others).
8. In view of the above said deliberations, the award of the Tribunal is
hereby modified to the effect that the appellant has to satisfy the award in
entirety and thereafter, recover 20% of the award amount from the owner of
the two wheeler. In other respects, the award of the Tribunal is confirmed.
9. Accordingly, this Civil Miscellaneous Appeal stands disposed of in
the above said terms. There shall be no order as to costs. Consequently
connected Miscellaneous Petition is closed.
15.06.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.1559 of 2013
To
1. The Motor Accidents Claims Tribunal/
I Additional District Judge, Thoothukudi.
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.1559 of 2013
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.1559 of 2013
15.06.2023
https://www.mhc.tn.gov.in/judis
