Madras High Court
Oriental Insurance Co. Ltd vs Senthil Kumar @ Kumar ... Petitioner / ... on 21 February, 2025
C.M.A.(MD)No.56 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.02.2025
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.56 of 2018
and
C.M.P.(MD)No.833 of 2018
Oriental Insurance Co. Ltd.,
By its branch Manager,
South Main Street,
Thanjavur Town,
Thanjavur. ... 2nd Respondent / Appellant
Vs.
1.Senthil Kumar @ Kumar ... Petitioner / 1st Respondent
2.Sekar ... 1st Respondent / 2nd Respondent
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1 ® of
CPC, 1908, against the award and decreetal award dated 02.02.2005
made in M.C.O.P.No.840 of 2002 on the file of the Motor Accident
Claims Tribunal (Principal Subordinate Judge), Thanjavur.
For Appellant : Mr.C.Jawahar Ravindran
For Respondents : Mr.K.R.Manimaran
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.(MD)No.56 of 2018
JUDGMENT
This Civil Miscellaneous Appeal has been preferred against the
award and decreetal award dated 02.02.2005 made in M.C.O.P.No.840
of 2002 on the file of the Motor Accident Claims Tribunal (Principal
Subordinate Judge), Thanjavur.
2.For the sake of convenience, the parties herein are referred as
per their ranking before the Trial Court.
3.The case is one of injury. The second respondent insurance
company is the appellant herein. The first respondent is the owner of
the car involved in the accident. On 04.08.2002, the petitioner claimant,
along with his friends Elangovan and Raghukumar, was travelling in a
TVS-50 bearing registration registration No.TN.49.D.8714 across the
Saliamangalam, Thanjavur road. While they were near the Mariamman
Koil by-pass road, the 1st respondent Maruthi Car bearing registration
No.TN.45.N.6399 was driven by its driver in a rash and negligent
manner. As a result of which, one of the pillion riders, namely,
Elangovan, jumped out of the two Wheeler. As a result of which, the
TVS-50 and the car collided against each other. The petitioner
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sustained several injuries in his left and right legs, right shoulder and
right elbow. Following which, he was admitted to the Medical College at
Thanjavur as an inpatient and took treatment for 70 days. At the time
of the accident, he was earning Rs.4500/- (Rupees Four Thousand and
Five Hundred only) per month and was aged 25 years old. He sought
compensation before the Motor Accident Claims Tribunal.
4.The learned Tribunal examined three witnesses on the side of
the petitioner / claimant and marked Ex.P1 to P10. No witnesses were
examined on the side of the respondents, and the documents were also
not marked on the side of the respondents. On the basis of the
arguments put forth by the respective parties, and on the basis of the
evidence deposed and the materials available on record, the learned
Tribunal passed an award of Rs.1,23,000/- (Rupees One Lakh and
Twenty Three Thousand only). Challenging the same, the second
respondent / insurance company has preferred this CMA.
5.The learned counsel for the appellant, Mr.Jawahar Ravindran,
submitted that this is a clear case of contributory negligence which was
not at all duly considered by the learned Tribunal. At the time of the
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accident, the injured travelled along with two others on a two wheeler,
that is, a TVS-50, as mentioned supra, and it is only because one of the
pillion riders jumped out of the two wheeler on seeing a Maruti car
coming from the opposite direction that the accident had happened.
However, the learned Tribunal failed to appreciate this aspect, by not
fixing a contributory negligence on both the parties. Similar grounds
have already been tested before this court in the case of Branch
manager, New India Assurance Company Limited vs. Murugesan
and another reported in 2021 (2) TN MAC 503, in which this Court
was pleased to fix the contributory negligence on the respective parties,
and on that basis, insisted on fixing the contributory negligence of at
least 20% on the injured.
6.Per contra, the learned counsel appearing for the injured /
claimant / 1st respondent, Mr.Manimaran categorically submitted that
this civil miscellaneous appeal ought not to have been numbered at all
for the sole reason that this is a matter of the year 2005; after a period
of 13 years, they have preferred this Civil Miscellaneous Appeal and the
total award is a meager amount of Rs.1,23,000/- (Rupees One Lakh and
Twenty Three Thousand only) which was a meager award in terms of the
injuries sustained by the injured and pressed for dismissal of the
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appeal.
7.Heard the learned counsels on either sides and carefully
perused the materials available on record.
8.No doubt, the injured ought not to have travelled as a first
pillion rider on a two wheeler where the rider made up his mind to
travel along with two pillion riders. Though the learned counsel for the
injured submitted that negligence cannot be fixed on him because it is
only because of the second pillion rider, who jumped out of the vehicle,
the accident had happened. I am of the considered view that the injured
ought not to have travelled as one among the three persons in a two
wheeler and it is an admitted fact that three persons actually travelled
in the said two wheeler.
9.This Court is of the considered view that a compensation of
Rs.1,23,000/- (Rupees One Lakh and Twenty Three Thousand only) has
been awarded by the learned Tribunal as early as in the year 2005
without fixing the contributing negligence on the part of the injured /
claimant. It would be just an equitable to fix a contributory negligence
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of 10% on the part of the injured claimant who opted to travel as the
first pillion rider, following the judgment of this Court reported in 2021
(2) TN MAC 627. Accordingly the compensation amount is modified from
Rs.1,23,000/- (Rupees One Lakh Twenty Three Thousand only) to Rs.
1,10,700/- (Rupees One Lakh Ten Thousand and Seven Hundred only)
(since 10 % contributory negligence arrive at Rs.12,300/-) (Rs.
1,23,000/- - Rs.12,300/- = 1,10,700/-)
10.The learned counsel appearing for the appellant insurance
company submitted that the entire amount of the award is already
deposited before M.C.O.P.No.840 of 2002 on the file of the Motor
Accident Claims Tribunal (Principal Subordinate Judge), Thanjavur.
11.The appellant / Insurance Company is permitted to withdraw
the amount to which they are entitled to. The claimant is permitted to
withdraw the modified award amount, that is, Rs.1,10,700/- (Rupees
One Lakh Ten Thousand and Seven Hundred only), less the amount, if
any already withdrawn, by making necessary application before the
Tribunal.
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12.Accordingly, the Civil Miscellaneous Appeal is allowed. No
costs. Consequently, connected miscellaneous petition is closed.
21.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes
Sml
To
The Motor Accident Claims Tribunal
(Principal Subordinate Judge),
Thanjavur.
Copy to
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
L.VICTORIA GOWRI, J.,
Sml
21.02.2025
https://www.mhc.tn.gov.in/judis
