Madras High Court
Narendran @ Regan vs Abraham on 3 September, 2024
C.M.A.(MD)Nos.1066 and 1067 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 03.09.2024
CORAM :
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A(MD)Nos.1066 and 1067 of 2009
In C.M.A(MD)No.1066 of 2009:
Narendran @ Regan ... Appellant/Petitioner
Vs.
1.Abraham
2.The New India Assurance Company Limited,
through its Divisional Manager,
84A, Thiruvanandapuram Road,
Palayamkottai. ...Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated
27.01.2009 passed in M.C.O.P.No.1297 of 2006 on the file of the Motor
Accident Claims Tribunal Judge (Additional District Judge/FTC No.I,),
Tirunelveli
In C.M.A(MD)No.1067 of 2009:
Narendran @ Philip ... Appellant/Petitioner
Vs.
1.Abraham
2.The New India Assurance Company Limited,
through its Divisional Manager,
https://www.mhc.tn.gov.in/judis
Page No.1 of 8
C.M.A.(MD)Nos.1066 and 1067 of 2009
84A, Thiruvanandapuram Road,
Palayamkottai. ...Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated
27.01.2009 passed in M.C.O.P.No.1298 of 2006 on the file of the Motor
Accident Claims Tribunal Judge (Additional District Judge/FTC No.I,),
Tirunelveli
In both appeals:
For Appellants : Mr.T.Selvakumaran
For R2 : Mr.J.S.Murali
R1 :No appearance
COMMON JUDGMENT
The instants appeals seek enhancement of compensation.
2. The claimants, who are the rider and the pillion rider of the two-
wheeler and sustained injuries due to the accident caused by the insured
vehicle, an Auto, had preferred the claim petitions seeking compensation
for the injuries suffered by them.
3. The 2nd respondent, being the insurer of the offending vehicle,
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C.M.A.(MD)Nos.1066 and 1067 of 2009
filed a counter stating that the accident took place due to the negligence
of the two-wheeler rider ; that the auto driver did not have a valid
license; and therefore, the 2nd respondent is not liable to pay
compensation.
4. The owner of the autorickshaw remained ex parte before the
Tribunal.
5. The claimants examined three witnesses as P.W.1 to P.W.3 and
marked Ex.P.1 to Ex.P.17. The 2nd respondent examined R.W.1 and R.W.2
and marked Ex.R.1 to Ex.R.3.
6. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the claimant in M.C.O.P.No.1297 of
2009 is entitled to a total compensation of Rs.3,11,552/- and the claimant
in M.C.O.P.No.1298 of 2009 is entitled to a total compensation of
Rs.1,35,000/- and apportioned the contributory negligence on the rider of
the two-wheeler at 50% and directed the 2nd respondent to pay 50% of the
compensation amount determined to the claimants.
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C.M.A.(MD)Nos.1066 and 1067 of 2009
7. The learned counsel for the appellants submitted that only
reason for fixing 50% contributory negligence on the rider of the two-
wheeler was that three persons had travelled in the two-wheeler; that
merely because three persons had travelled in the two-wheeler, it would
not automatically lead to contributory negligence; and that the
compensation awarded by the Tribunal is meagre. He therefore prayed
for enhancement of compensation.
8. Though notice has been served on the 1st respondent and his
name is printed in the cause list, none entered appearance.
9. The learned counsel for the 2nd respondent, per contra, submitted
that admittedly, three persons travelled in the two-wheeler, and hence, the
Tribunal was right in fixing 50% contributory negligence and that the
award of the Tribunal is just and reasonable.
10. The points for consideration in the instant appeal are as
follows:
a) Whether the finding of the Tribunal fixing 50% contributory
negligence on the rider of the two-wheeler is justified; and
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C.M.A.(MD)Nos.1066 and 1067 of 2009
b) Whether the compensation awarded by the Tribunal is just and
reasonable.
11. Admittedly, the claimants along with another person were
riding the two-wheeler at the time of accident. However, the question is
whether travel of three persons in the two-wheeler would automatically
lead to contributory negligence. The 2nd respondent has not let-in any
evidence to show that the rider of the two-wheeler had contributed to the
accident in any other manner. R.W.1 and R.W.2, were were examined by
the 2nd respondent, did not speak about the accident.
12. The Division Bench of this Court, in Divisional Manager,
National Insurance Co. Ltd. Dindigul Vs. M.Amutha reported in
2023(2) TN MaC 585, held that three persons traveling in two-wheeler
though violation of law, would not automatically lead to contributory
negligence. However, taking into consideration the fact that three persons
travelled in the two-wheeler and considering the manner in which the
accident took place, this Court is of the view that it would be just and
reasonable to fix contributory negligence at 10% both on the riders of the
two-wheeler/claimants. The point No.1 is answered accordingly.
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C.M.A.(MD)Nos.1066 and 1067 of 2009
13. As regards quantum of compensation, this Court is of the view
that considering the nature of injuries and the disability certificates
produced on the side of the claimants, the Tribunal had determined the
compensation at Rs.3,11,552/- and Rs.1,35,000/- respectively.
14. Though the learned counsel for the appellant pleaded for
enhancement of compensation, he is unable to point out any infirmity in
the said award of compensation which requires enhancement. Therefore,
there is no need to modify the quantum of compensation and the same is
confirmed.
15. Since contributory negligence on the rider is reduced from
50% to 10%, the 2nd respondent would be liable to pay (Rs.311,552 -
10%) Rs.2,80,396.80/- rounded off to Rs.2,80,397/- (Rupees Two
Lakhs, Eighty Thousand, Three Hundred and Ninety Seven Only) to
the claimant in MCOP.No.1297 of 2006 (C.M.A(MD)No.1066 of 2009)
and to pay (Rs.1,35,000 – 10%) Rs.1,21,500/- (Rupees One Lakh,
Twenty One Thousand, Five Hundred Only) to the claimant in
MCOP.No.1298 of 2006(C.M.A(MD)No.1067 of 2009).
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C.M.A.(MD)Nos.1066 and 1067 of 2009
16. The 2nd respondent shall deposit the said amount with accrued
interest within a period of four weeks from the date of receipt of a copy
of this judgment. On such deposit, the claimants in both appeals are
permitted to withdraw the same by filing a suitable application.
17. The 2nd respondent is at liberty to recover the said amount from
the owner in accordance with the judgment of the Hon'ble Supreme
Court in Oriental Insurance Co. Ltd., Vs. Shri Nanjappan and
Others reported in 2004 (1) TN MAC (SC) 211.
18. In fine, these appeals are partly allowed. No costs.
03.09.2024
Index : Yes / No
Neutral Citation : Yes / No
CM
To
1. Motor Accident Claims Tribunal Judge
(Additional District Judge/FTC No.I,), Tirunelveli
2. The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)Nos.1066 and 1067 of 2009
SUNDER MOHAN, J.
CM
Judgment made in
C.M.A(MD)Nos.1066 and 1067 of 2009
03.09.2024
https://www.mhc.tn.gov.in/judis
