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Madras High CourtCMA/1905/2023partly allowed

Murugesan v. Periyasamy

2024-03-13Honourable Mr Justice Krishnan Ramasamy8 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13.03.2024 C O R A M THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY Murugesan ...Appellant Vs 1.Periyasamy 2.The New India Assurance Company Limited, Divisional Office, Jawaharlal Nehru Street, Pondicherry.

... Respondents Prayer:

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to allow this appeal by enhancing the compensation awarded in the Judgment and Decree dated 12.12.2022 passed in MCOP.No.364 of 2020 on the file of the Motor Accident Claims Tribunal, III Additional District Court, Villupuram @ Kallakurichi.

For Appellant : Mr.K.Suryanarayanan For Respondent : Mr.N.Somasundaar, for R2 1/8

JUDGMENT

This civil miscellaneous appeal has been filed challenging the judgment and decree dated 12.12.2022 passed in MCOP.No.364 of 2020.

2. The learned counsel for the claimant would submit that on 18.12.2020, while the claimant was travelling as a pillion rider in a two-wheeler bearing Registration No.TN-15-L-6291 at Somandarkudi M.Vannanjur, a Harvestor, belongs to the 1st respondent, suddenly turned in a rash and negligent manner and dashed against the claimant, due to which he had sustained grievous injuries. Considering all the aspects, the Tribunal had awarded the compensation in the following manner:

S.No Heads Compensation (Rs.) Injuries 50,000 Pain and Sufferings 20,000 Transportation Charges 10,000 Extra Nourishment 10,000 Loss of Earning 27,000 Medical Expenses 44,889 Total 1,61,889

3. He would further submit that though the accident was occurred only 2/8

due to the negligence of the driver of the Harvestor, while awarding compensation, the Tribunal had fastened 50% negligence towards the claimant and 50% negligence towards the driver of the Harvestor. He would also submit that since the Harvestor would go only at the speed of 30 to 40 km/hr, the rider of the two-wheeler tried to overtake the Harvestor and at that point of time, the accident was occurred since the driver of the Harvestor had not allowed the rider of the two-wheeler to overtake his vehicle and while overtaking, he had inadvertantly dashed against the claimant, due to which, he sustained injuries. Without considering the said aspect, the Tribunal had fastened 50% liability towards the rider of the two-wheeler for overtaking the Harvestor. Hence, he requests this Court to re-determine the same.

4. On the other hand, the learned counsel for the respondent would submit that the Tribunal has categorically recorded that it was a narrow road and only the rider of the two-wheeler had invited the accident by making an attempt to overtake the Harvestor. Hence, the Tribunal had rightly fastened 50% liability against the rider of the two-wheeler and the same does not need any reconsideration. 3/8

5. Heard the learned counsel for the appellant and the respondents and also perused the documents available on records.

6. Upon perusal of records, it appears that the driver of the Harvestor was neither impleaded as a party nor examined before the Tribunal. The insurance company had not took any steps to examine the driver of the Harvestor before the Tribunal in order to prove their case that the accident was occurred due to the negligence on the part of the rider of two-wheeler also.

7. Further, it appears that the rider of the two-wheeler and the Inspector was examined and it is an admitted fact that the rider had attempted to overtake the Harvestor and there is no dispute with regard to the same.

8. Normally, a Harvestor would move only at a speed of 30 to 40 km/hr. In such case, though the Harvestor occupied the entire road, the driver of the Harvestor is supposed to have noticed the attempts made by the rider of twowheeler to overtake his vehicle and provided way to the said two-wheeler. Thus, a duty cast on the Harvestor to slowdown or stop the vehicle and provide way for other vehicles, however, the driver of the Harvestor failed to do so. Further, 4/8

in the present case, nothing has been culled out by the Insurance Company with regard to the aforesaid aspects but the Harvestor only dashed against the twowheeler without providing any way. Hence, this Court is of the considered view that the negligence is totally on the part of the driver of the Harvestor and not on the rider of the two-wheeler. Therefore, 50% negligence fastened by the Tribunal against the rider of the two-wheeler is hereby set aside and the entire negligence is fastened against the driver of the Harvestor.

9. With regard to the quantum of compensation, the learned counsel appearing for the claimant would submit that the compensation awarded by the Tribunal is on the lower side and hence, he requests this Court to enhance the same.

10. Upon perusal of the documents, it appears that no disability certificate was produced by the claimant and hence, depending upon the nature of injuries sustained by the claimant, the Tribunal had awarded compensation of a sum of Rs.1,61,889/- and the same appears to be just and reasonable. Therefore, this 5/8

Court is inclined to confirm the compensation awarded by the Tribunal. Accordingly, the compensation awarded by the Tribunal vide award dated 12.12.2022 stands confirmed on the aspect of quantum of compensation. Since this Court had fastened the entire liability against the driver of the Harvestor, the Insurance company is liable to pay the entire award amount.

11. In the result, this Civil Miscellaneous Appeal is partly allowed and the 2nd respondent is directed to deposit the entire award amount of a sum of Rs.1,61,889/- along with interest and costs, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this judgment, to the credit of MCOP.No.364 of 2020 on the file of the Motor Accident Claims Tribunal, III Additional District Court, Villupuram @ Kallakurichi. Upon such deposit, the Tribunal is directed to transfer the award amount to bank account of the claimant, by way of RTGS, within a period of three weeks from the date of deposit and receipt of the Bank details obtained from the claimant. No costs.

13.03.2024 Index: Yes/No 6/8

Internet:Yes/No Speaking order/Non-speaking order nsa 7/8

KRISHNAN RAMASAMY,J.

nsa 13.03.2024 8/8