Sakthivel vs Rajeswari
2023 Latest Caselaw 3502 Mad

    2023/MHC/1589




                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED: 30.03.2023

                                                    CORAM:

                            THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                       C.M.A(MD)No.1202 of 2022
                                                 and
                                       C.M.P(MD)No.12237 of 2022


                     Sakthivel                      :Appellant/Third respondent

                                             .vs.


                     Soundararajan(died)

                     1.Rajeswari

                     2.Shanmugapriyan

                     3.Sivamanikandan

                     4.Kaliammal                    :Respondents 1 to 4/Claimants

                     5.Arulraja

                     6.The Divisional Manager,
                       United India Insurance Company Limited,
                       7A, West Veli Street,
                       Opposite to Railway Station,
                       Madurai.                     :Respondents 5 and 6/Respondents
                                                                            1 and 2
                     (Since the fifth respondent is set ex-parte before the trial Court,
                     notice to the fifth respondent may be dispensed with)


                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                     Motor Vehicles Act against the judgement and award           made in
                     M.C.O.P.No.28 of 2016, dated 26.09.2018, on the file of the Motor

                     1/7
https://www.mhc.tn.gov.in/judis
                     Accidents Claims Tribunal(Additional District Court), Paramakudi.


                                       For Appellant              :Mr.J.Anandkumar

                                       For Respondents            :Mr.D.Senthil
                                            1 to 4

                                       For Respondent-5           :Mr.K.Kumaravel

                                       For Respondent-6           :Mr.N.Dilip Kumar

                                                      JUDGMENT

*************

Challenging the finding of the Tribunal fixing 70%

negligence on the rider of the motor-cycle owned by the appellant,

the present Civil Miscellaneous Appeal came to be filed.

2.On 31.7.2012 at about 5.00 p.m., the two wheeler bearing

Registration No. TN 65 Z 9457 rode by its rider from Sayalkudi to

Kadaladi and the deceased one Umaya Vignesh is the pillion rider.

At that time, another two wheeler bearing Registration No.TN 65 Z

8366 came in the opposite direction in a rash and negligent

manner and dashed against the appellant's two wheeler and as a

result, the appellant's motor cycle rider succumbed to injuries and

rider of the another vehicle bearing Registration No. TN 65 Z 8366

also succumbed to injuries in the same accident and a crime has

been registered in Crime No.122/2012 against the rider of the two

wheeler bearing Registration No. TN 65 Z 9457. Hence the

https://www.mhc.tn.gov.in/judis compensation has been claimed for the death of the pillion rider

who travelled in the motor cycle bearing Registration NO. TN 65 Z

0457 by the parents and sipplings.

3.The second respondent, who is the owner of the two

wheeler bearing Registration No. TN 65 Z 8366 filed a counter

affidavit denying the rash and negligent driving of his motor cycle.

The appellant remained exparte before the Tribunal and not filed

any counter.

4.Before the Tribunal P.W.1 was examined and Ex.P1 to

Ex.P11 were marked. On the side of the respondents, R.W.1 and

R.W.2 were marked and Ex.R1 and Ex.R2 were marked.

5.Considering the oral and documentary evidence, the

Tribunal has come to the conclusion that the rider of the appellant

motor cycle was negligent in driving his motor cycle and thus

caused the accident. The Tribunal mainly relied upon the evidence

of P.W.1,R.W.1 and R.W.2. R.W.1 is the pillion rider of the vehicle

bearing Registration No. TN 65 Z 8366. R.W.2 is the Investigation

Officer. Taking note of the fact that the accident took place on the

middle of the road and rider of the appellant motor cycle rode the

https://www.mhc.tn.gov.in/judis vehicle in a rash and negligent manner and fixed the negligence on

appellant's vehicle and directed the appellant to pay 75% of the

amount awarded. The Tribunal taking note of the age of the

deceased, awarded a sum of Rs.8,11,000/- as compensation, in

which, 75% of the amount is directed to be paid by the appellant.

Challenging the same, the present appeal came to be filed.

6.The main contention of the appellant before this Court is

that there are two different versions in which one witness depose

to the effect that the vehicle fell on the western portion of the road

and another witness depose to the effect that the vehicle fell on the

eastern side of the road. The same clearly indicate that there

cannot be exact evidence to prove the negligene, particularly, head

on collusion. Therefore his contention is that the Tribunal fixing

the negligene at 75% on the appellant is not proper and the same

may be reduced.

7.Heard the learned counsel appearing on either side and

perused the materials placed before this Court.

8.The Tribunal,after considering the evidence of P.W.1 and

R.W.1 and 2 has come to the conclusion that the accident is purely

https://www.mhc.tn.gov.in/judis due to the rash and negligent driving of the driver of the motor

cycle owned by the appellant. It is relevant to note that R.W.1 is the

pillion rider in the vehicle bearing Registration No. TN 65 Z 8366

and that vehicle rider is also succumbed to injuries. The accident

took place in the main road, head on collusion and the appellant

has not even filed any counter denying the stand of the Petitioner

nor taken any steps to examine the rider of his motor cycle to prove

his stand. When the appellant had sufficient oppoprtunity to

disprove certain facts which has already been proved by the other

side, the appellant without doing so, merely on the basis of the

oral submission cannot deny the finding rendered by the Tribunal.

In the absence of any evidence adduced on the side of the

appellant, the Tribunal has considered the evidence, particularly

the evidence of the Investigation Officer and an eye witness, who

was the rider in other vehicle, has rightly come to the conclusion

that only the rider of the appellant motor cycle was negligent in

driving his motor cycle. It is also relevant to note that there is no

insurance to the appellant's vehicle, besides, licence of the rider

has also not been established. In the given situation, the Tribunal

has shown some indulgence and fixed the liability at 75%, without

fixing the entire negligence on the appellant's driver. For all these

reasons, this Court finds no merit in the appeal and same deserves

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

9.Accordingly, the Civil Miscellaneous Appeal is

dismissed,confirming the award of the Tribunal. No costs.

Consequently, connected Miscellaneous Petition is dismissed.

30.03.2023

Index:Yes/No Internet:Yes/No NCC:Yes/No vsn

To

1.The Motor Accidents Claims Tribunal, (Additional District Court), Paramakudi.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis N.SATHISH KUMAR.,J.

vsn

JUDGMENT MADE IN C.M.A(MD)No.1202 of 2022 and C.M.P(MD)No.12237 of 2022

30.03.2023

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